Effective date: July 27, 2019
Agreement to Terms
IMPORTANT NOTICE: THE TERMS REQUIRE BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM RELATING TO THE TERMS OR THE SERVICES OR ANY RELATIONSHIP BETWEEN US. ANY SUCH DISPUTE OR CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR ARBITRATION. THE TERMS ALSO CONTAIN A DISCLAIMER OF WARRANTIES AND A DISCLAIMER OF LIABILITY, AS WELL AS A RELEASE AND INDEMNIFICATION BY YOU. PLEASE READ THEM CAREFULLY.
Additional Terms. Certain programs or features we offer through the Services may have additional terms and conditions (the “Additional Terms”) that will be communicated to users of that program or feature. Additional Terms may include a third party’s terms and conditions, if that third party provides a feature of the Services or offers promotions, programs or services through the Services. If you participate in one of these promotions or programs or one of these features or services, the applicable Additional Terms will be a part of the Terms.
Changes to Terms. We may modify the Terms at any time by posting a revised version. Any changes to the Terms will be effective immediately upon posting. Please review the Terms each time you use the Services as your continued use of the Services after such changes will constitute your acceptance of, and agreement to, such changes. While we may also provide you with a notice on the Website or by other means, we are not required to do so. You waive any right to receive specific notice of changes.
Consent. If you are accessing and using the Services, you affirm that you are at least 18 years of age (or the age of majority in your jurisdiction, if greater) and are fully able and competent to enter into and comply with the Terms. If you are accessing and using the Services on behalf of a company or other legal entity, you represent that you have the legal authority to bind that entity to the Terms. In that situation, “you” and “your” will refer to both you and that entity.
We deliver the Services as “software as a service” on a subscription basis. The functionality and features of a Service are described in the online help FAQs, user guides, and similar documentation for that Service (“Documentation”).
Account. You must register for an account in order to access and use the Services. When you open or confirm an account, you will be required provide us with certain personal information, such as your name, address, phone number, and (if applicable) credit card payment details. You must keep your account information accurate and current at all times. You are responsible for maintaining the security of your account information and for all activity under your account. You agree to immediately notify us of any unauthorized access to or use of your account or lost or stolen account information.
Access and Use Rights. Subject to your compliance with the Terms and the Documentation, we hereby grant you a non-exclusive, limited, revocable, non- transferable and non-sublicensable right to access and use the Service in accordance with the subscription plan you purchase, during the term of your subscription, solely for your personal use (or, if you are an authorized user of a company or other legal entity that purchases the subscription and you are accessing and using the Services on behalf of that company or other entity, for the internal business use in the organization you represent). We reserve all other rights.
Our Materials. As between you and us, we and our licensors own all right, title and interest in and to the Services, Our Materials and the Third-Party Materials (as those terms are defined below), and all enhancements or improvements to or derivative works of any of the foregoing, including all intellectual property rights therein.
“Our Materials” means the templates, samples, files, images, logos, information and other content and materials (and all intellectual property rights therein) contained or used in a Service, other than Your Content (as defined below), Our Technology, and the Documentation. “Our Technology” means the technology and related intellectual property we use to provide the Services, including computer software programs, connectors, websites, networks, and equipment. Our Technology does not include software programs, services and other technology that are provided or made available by third parties (“Third-Party Applications”). Our Materials may include templates, samples, files, images, logos, information, advertisements, offers, promotions, services, or other content or materials of third parties (“Third-Party Materials”). You agree not to remove, obscure, or alter any notice of copyright, trademark, trade secret, or other proprietary right related to Our Technology, Our Materials, the Services or the Documentation.
Your Content. As between you and us, you own all right, title and interest in and to Your Content, including all intellectual property and proprietary rights therein.
“Your Content” means (i) any electronic information, data, documents, files, images or content that is uploaded or otherwise submitted to a Service by you or on your behalf, or that we obtain from your corporate website(s) pursuant to the rights granted to us under the Terms, and (ii) the Unique Service Output that is generated by a Service when processing that information, data, documents, files, images or content. “Unique Service Output” means the customer-specific output generated by a Service (such as customer- specific brand guidelines), excluding any of Our Materials or Third-Party Materials included in such output.
You grant us the right to use Your Content (i) to provide the Services; (ii) for our internal use to maintain, evaluate, develop, and improve the Services; (iii) to comply with applicable local, state, federal and international laws and regulations (“Applicable Laws”); and (iv) for other permitted uses stated elsewhere in the Terms. We will not use, disclose or distribute any of Your Content except as permitted in the Terms or as required by Applicable Law.
You grant us the right to scrape or otherwise collect images, information and data relating to your brand (including logo, colors and fonts) from your corporate website(s) solely for the uses contemplated by the Terms and the Documentation.
You agree that, once you elect to use the Service’s publication feature to publish your brand guidelines to a URL on the Website, your brand guidelines will be visible to any person who inputs that URL, unless the subscription you purchase allows you to configure your settings to keep your brand guidelines private. In addition, you agree that any of your logos, fonts and colors uploaded to a Service or scraped or otherwise collected from corporate website(s) (“Your Brand Characteristics”) may be published and made publicly available in our library of brand information offered through the Services (the “1Brand Library”); provided that (i) we will not publish any of Your Brand Characteristics that are not already publicly available on your corporate website(s) or otherwise until you elect to make them publicly available through the Service’s publication feature; and (ii) the 1Brand Library will provide identifying information about you (such as your name and/or your corporate website address) and disclaim ownership of the logos and other Brand Characteristics displayed in the 1BrandLibrary. You grant us a nonexclusive, perpetual, irrevocable, royalty free, fully paid, worldwide license to use, reproduce, distribute, display, publish and permit third parties to access and view your brand guidelines through the URL on which they are published and Your Brand Characteristics in and through the 1Brand Library, in each case for informational purposes only, both during and after the end of your subscription and any termination of these Terms. For the avoidance of doubt, we do not have the right to sell, license or grant to any third party any rights in or to your brand guidelines or Your Brand Characteristics, except for the limited right to access and view them on the URL or through the 1Brand Library.
You have sole responsibility for the accuracy, quality, completeness, appropriateness, integrity, legality and all other aspects of Your Content and the means by which you acquired Your Content. You may not submit to a Service any content or materials that you do not own or otherwise have the legal right to submit. We do not (and have no obligation to) approve, control or verify, and we do not endorse, any of Your Content. However, we reserve the right (but assume no obligation) to pre-screen, reject or remove any of Your Content for any reason, in our discretion. We have no obligation to provide you with Your Content (including Your Unique Service Output) except as provided in the Documentation or as we may otherwise expressly agree in writing.
Third Party Materials. The Services may contain, present or be linked to Third-Party Materials or Third-Party Applications. Third-Party Materials and Third-Party Applications are not owned or controlled by us and we are not responsible for them. The presentation, inclusion or linking of any Third-Party Materials or Third-Party Applications does not mean that we endorse or sponsor them. Any access or use by you of any Third-Party Materials or Third-Party Applications is subject to such third party’s terms and conditions. We have the right, at any time and in our sole discretion, to remove or disable access to any such Third-Party Materials or Third-Party Applications, subject to our obligations in the Terms with respect to reduction of Service features or functionality.
Anonymized Data. We may collect and store metadata associated with your use of the Services, including IP addresses, stored sessions, and network metadata (collectively, “Your Metadata”) and use it for same purposes as we may use Your Content. In addition, we may aggregate Your Content and Your Metadata with data and metadata from other customers or other sources, provided that such data and metadata is anonymized and you cannot be recognized as its source (collectively, the “Anonymized Data”). For the avoidance of doubt, Anonymized Data does not include any data or information that could be used to identify or re-identify you. We may use Anonymized Data for any purpose, both during and after the end of your relationship with us.
Promotional Programs. From time to time, we may offer you service credits (redeemable against future subscription costs) or other promotional consideration for participating in specified activities, such as referring another customer to use the Services with your unique referral code, embedding your brand guidelines in your website, or sharing your brand guidelines on social media. To receive such credits, you must comply with all of the Additional Terms of the program. Service credits and other promotional consideration do not have any cash or other value and cannot be transferred, sold or assigned.
Suggestions. If you provide us with any feedback or suggested improvements to the Services (a “Suggestion”), then that Suggestion is provided as is, and you grant us a nonexclusive, perpetual, irrevocable, royalty free, fully paid, worldwide license, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of that Suggestion, without credit or compensation to you.
If you are a marketing, advertising, web development or other agency or firm (“Agency”) that purchases the appropriate Agency subscription plan, you may use the Service to create Unique Service Output for the benefit of your clients (“Indirect Client Use”) or provide your clients with direct access to the Services under your account (“Direct Client Use”) as provided in this section.
In the case of Direct Client Use or Indirect Client Use, with respect to use by or on behalf of your client, (i) the term “Your Content” means (a) any electronic information, data, documents, files, images or content of your client that is uploaded or otherwise submitted to a Service by your client or by you on behalf of your client, or that we obtain from your client’s corporate website(s) pursuant to the rights granted to us under the Terms, and (b) the Unique Service Output that is generated by a Service when processing such information, data, documents, files, images or content; and (ii) the term “Unique Service Output” means the unique client-specific output generated by the Service, excluding any of Our Materials and Third-Party Materials included in such output.
The provisions in the section above entitled Your Content relating to images, information and data relating to a brand (including logos, fonts and colors) uploaded to a Service or scraped or otherwise collected from a corporate website(s) will apply to your client’s images, information and data. References to “Your Brand Characteristics” and “your brand guidelines” refer to the logos, fonts and colors of your client and the brand guidelines of your client.
Indirect Client Use. You may provide your client with Unique Service Output (such as client-specific brand guidelines) that you create for such client using the Service, provided that you may do so only in conjunction with your client’s purchase of your other offerings. You have sole responsibility for all aspects of Your Content of your client and the means by which you acquired it.
We will white-label Unique Service Output created through Indirect Client Use (i.e., it will have only your Agency branding or will have Company branding removed, as appropriate for the Service) if you configure white-labeling as part of a subscription that permits it. As part of such white-labeling, you may present your client’s Unique Service Output (such as your client’s branding page) on your own Agency website using a frame, subdomain or other option available through the Service, as configured through the Service. If your payment is more than 30 days past due with respect to any Fees (as defined below) payable for Indirect Client Use, then we may elect, in our sole direction, to brand with 1Brand branding any white-labeled features of the Service until such time as such Fees are paid. If the Unique Service Output is not white-labeled, then you agree to display the applicable Service logo and accompanying 1Brand content when offering the Unique Service Output to your clients.
In connection with Indirect Client Use of a Service on behalf of a client, (i) you grant us, on behalf of such client, the right to scrape or otherwise collect images, information and data relating to such client’s brand (such as logo, colors and fonts) from such client’s website for the uses contemplated by the Terms, and (ii) you represent and warrant that you have obtained such authorization from your client as is necessary for you to grant us such rights.
Direct Client Use. You may provide Direct Client Use of a Service only in conjunction with your client’s purchase of your other offerings, and you shall not resell the Service on a standalone basis. You must ensure that your clients agree to the Terms before accessing the Service.
The Service will be white-labeled for Direct Client Use (i.e., presented to your clients with your Agency branding only or with Company branding removed, as appropriate for the Service) if you configure white-labeling as part of a subscription that permits it. As part of such white-labeling, you may present the Service on your own website using a frame, subdomain or other option available through the Service, as configured through the Service. If the Service is not white-labeled, then you agree to display the applicable Service logo and accompanying 1Brand content when offering the Service to your clients.
Unless otherwise configured through the Service, all Fees payable for Direct Client Use will be charged to your account and you will have sole liability for such Fees. If a payment is more than 30 days past due with respect to any Fees payable for Direct Client Use, then we may elect, in our sole direction, to brand with 1Brand branding any white-labeled features of the Service until such time as the Fees are paid and/or, if you are responsible for the payment of such Fees, to establish a direct relationship with your clients for the provision of the Service.
No Account Disclosure. You must solely control your account, not permit Clients access to your account, and not disclose your account access credentials to your clients.
Client Support. You are responsible for providing your clients with all support related to the Service and Unique Service Output, except as may we otherwise agree in writing.
Subscription Term. The initial term of each Service subscription will begin on the date you sign up for the Service (or such later date as you and we may agree) and, unless earlier terminated as provided for in this Section, will continue for the initial subscription term you purchase. Thereafter, the subscription term will automatically renew for successive additional 12-month periods, unless (i) you either cancel the renewal using the self-service cancellation feature of the Service before the expiration date of the then-current Subscription Term or provide us with written notice of non-renewal at least 5 days before the expiration date of the then-current Subscription Term, or (ii) we provide you with written notice of non-renewal at least 60 days before the end of the then-current Subscription Term. The initial subscription term and the renewal subscription term(s) are referred to, individually and collectively, as the “Subscription Term.” A Subscription Term may not be terminated before its end except as expressly permitted by the Terms.
Termination for Cause. Either you or we may terminate your subscription and the Terms by notice to the other party if (i) the other party materially breaches its obligations under the Terms and, if the breach is capable of cure, fails to cure the breach within 30 days of the date of notice of breach; or (ii) upon the other party ceasing to operate in the ordinary course, making an assignment for benefit of creditors, or becoming the subject of any bankruptcy, liquidation, dissolution, or similar proceeding that is not resolved within 60 days of filing. If you terminate your subscription for a Service as a result of our material breach, then we will refund the Fees you paid for the unused portion of the Subscription Term of the terminated Service.
Suspension. If you fail to pay any Fees owed or otherwise breach the Terms with respect to a Service, then we may, in addition to any other rights and remedies we have, suspend delivery of such Service without any liability to you; provided, however, that in the event of breach of your payment obligations or other breaches that do not threaten our or any other customer’s or service provider’s systems (a “System Threat”), we will not suspend delivery of the Service unless we have provided you with at least 10 days’ notice (including by phone or email to your account contact) and such breach remains uncured at the end of such 10-day period. In the event of a System Threat, we will make a good faith effort to contact and provide notice to you in advance of any suspension. In the event of suspension pursuant this provision, you will continue to be obligated to pay all Fees for suspended Services and you will not be entitled to any compensation or credits for any period of suspension, unless the suspension was due to our error or omission or a System Threat not caused by you.
Effect of Termination. If you cancel your subscription to a Service, you may delete your account and Your Content (other than Your Brand Characteristics) from the Service and, in that case, the brand guidelines that you created with the Service will no longer be available on the URL on which they were published. If you cancel your subscription but do not delete Your Content before termination, or if your subscription expires and is not renewed, then after termination or expiration of your Subscription Term for the Service, (i) we will delete Your Content (other than Your Brand Characteristics) from the Service only upon written request by you from the email address associated with your Service account; and (ii) we will continue to make the brand guidelines that you created with the Service available on the URL on which they were published (subject to the privacy configuration at the time of termination, if applicable), but you will no longer be able to make edits, we will disable some functionality (including but not limited to downloading multiple file types), and we may, at our discretion, include 1Brand branding when displaying them. We will have no obligation to maintain, delete or provide Your Content (including your Unique Service Output) through the Service, except as provided herein or as we may otherwise expressly agree in writing.
Fees. Unless we otherwise agree in writing, all fees for the Services, together with any applicable taxes thereon (“Fees”) are payable in advance, in accordance with the payment schedule for the subscription plan you select. All Fees are denominated and payable in US dollars. You are responsible for all taxes imposed on the Services by any governmental authority, other than taxes based on our income.
Except as expressly set forth in the Terms, Fee payments are non-refundable.
Overdue Payments. Overdue amounts will bear interest at the rate of 1.5% per month or the maximum rate permitted by Applicable Law, whichever is less. You agree to pay any collection agency fees, attorney’s fees or other expenses we incur in collecting any overdue amounts.
Free Trials. If you are participating in a free trial of a Service, you will have the right to use the Service for the duration of the free trial without charge until the expiration date of the trial. If you do not elect to purchase a subscription to the Service on or before the expiration date of the trial, then the terms of the provision entitled Subscription Term/ Effect of Termination above will apply to Your Content and your account.
Payment Disputes. You must assert any payment dispute in writing within 15 days after the payment’s due date. Provided that you make the dispute reasonably and in good faith and you provide reasonable cooperation to resolve the dispute, we will not apply late payment interest or exercise any suspension or termination rights with respect to the disputed amount. Any undisputed portion of an invoice must be paid by the due date.
You agree that you will not, will not attempt to, and will not authorize or permit any third party to engage in any of the prohibited actions described in this section, except as we expressly authorize in the Terms or otherwise in writing.
No Automated Queries; No Harvesting. You may not access, download, copy, or obtain any of Our Materials in any way or by any means, whether manual or automatic, that we do not intentionally make available through the Services. By way of example and not limitation, you may not use scraping, spiders, robots, crawlers, site search/retrieval applications, deep-link, or any similar process. However, general purpose Internet search engines that use tools to gather information for the sole purpose of creating publicly available, searchable indices of such materials (but not caches or archives of such materials) and displaying hyperlinks to the Services are granted a limited exception from the foregoing exclusion, provided that they do so only to the extent necessary for such purposes and do so from a stable IP address or range of IP addresses using an easily-identifiable agent that adheres to applicable law and all limitations set forth in any applicable robots.txt file located in the Website’ root directory. We reserve the right to revoke such permission, either generally or in specific cases, at any time and without notice.
No Unauthorized Access. You may not access or use a Service through any means not intentionally made available through the Service under the subscription plan you purchase (including, but not limited to, attempting to gain unauthorized access to any portion of the Website or the systems connected to the Website, or permitting direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, such as log-in sharing).
No Improper Content. You may not submit to a Service or use the Service to store any content or materials that (i) you do not own or otherwise have the legal right to submit, (ii) infringes, misappropriates or violates the intellectual property rights or other rights of any third party, (iii) is in violation of any Applicable Law, or (iv) is deceptive, fraudulent, threatening, harassing, defamatory, obscene or otherwise tortious or objectionable, as determined by us in our reasonable discretion. You may not upload to the Service any computer virus, Trojan horse, worm, or other similar malicious code.
No Improper Uses. Except as we expressly make available through a Service under the subscription plan you purchase, you may not (i) modify or create any derivative work of any of Our Materials, Our Technology or the Documentation; (ii) share, sell, rent, license, lease, use in a service bureau, outsourcing or similar business, transfer, distribute, disclose or otherwise use or make available for the benefit of anyone other than yourself, the Services or any of Our Technology, Our Materials or the Documentation; (iii) frame, mirror, or put on any non-Company domain or subdomain any part of the Services. You may not use or access the Services in any manner that could damage, disable, overburden, or impair the integrity or performance of the Services or any of Our Technology or that could otherwise harm us, our suppliers and licensors, or any other person.
No Reverse Engineering. You may not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Services, except to the extent specifically permitted by Applicable Law.
No Objectionable Conduct. In using the Service and interacting with us, you may not engage in any form of harassment or offensive behavior, including but not limited to making abusive, defamatory, racist, obscene, or offensive statements. If you are an Agency, you may not use the Services to engage in any illegal acts or acts of wrongdoing, dishonesty or unethical business practices.
Definition. “Confidential Information” means any information disclosed by you or us (the “Discloser”) to the other party (the “Recipient”) that is confidential or proprietary and that is either identified as proprietary or confidential or, given the nature of the information or the circumstances surrounding the disclosure, reasonably should be considered to be proprietary or confidential. Confidential Information may be of a technical, business or other nature (including information that relates to the Discloser’s technology, research, development, products, services, pricing, customers, suppliers, personnel, marketing plans, finances, or legal affairs) and may include information of third parties that the Discloser is obligated to keep confidential. Confidential Information does not include any information that the Recipient can demonstrate: (i) was known to the Recipient prior to receipt; (ii) was independently developed without reference to or use of the Discloser’s Confidential Information; (iii) was acquired by the Recipient from another source without restriction as to use or disclosure; (iv) is or becomes generally available to the public through no action of the Recipient; or (v) is Anonymized Data.
Obligations. The Recipient shall (i) protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature, but in no event less than reasonable care; (ii) use any Confidential Information of the Discloser solely for the Recipient’s performance of its obligations or exercise of its rights under the Terms; and (iii) disclose Confidential Information of the Discloser only to its directors, officers, employees, contractors, agents and representatives (“Representatives”) with a need to know and who are bound by obligations of confidentiality and restricted use at least as protective as those in this Section. At the Discloser’s request, the Recipient shall promptly return or destroy all Confidential Information of the Discloser; provided, however, that the Recipient is not required to return or destroy any Confidential Information of the Discloser that must be retained for regulatory, legal or audit purposes or for compliance with its document retention policies, or to destroy any electronic copies made as part of its routine archival or backup procedures; provided, however, that all such Confidential Information retained by the Recipient shall remain subject to this Section for as long as it is retained.
Exclusions. This Section does not prohibit: (i) any disclosure required by Applicable Law or judicial or regulatory process, provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (if permitted by Applicable Law) so as to afford the Discloser an opportunity to seek an order or other appropriate relief for the protection of its Confidential Information; or (ii) any use or disclosure made with Discloser’s written consent.
Equitable Relief. In the event of any breach or threatened breach of the Recipient’s obligations under this Section, the Discloser will be entitled to seek injunctive and other equitable relief, without the necessity of posting bond.
Ownership. As between the parties, the Discloser retains all right, title and interest in and to its Confidential Information.
Data Protection; Data Privacy
Protection of Your Content, Personal Information, and Confidential Information. We will maintain commercially reasonable technical, administrative and physical safeguards (including with respect to personnel, facilities, networks, access controls, monitoring and logging, vulnerability and breach detection, incident response, encryption, and other appropriate organizational and technical measures) designed to protect the security, confidentiality and integrity of the our Technology and Your Content and prevent the unauthorized release of or access to Your Content, your Confidential Information and your Personal Information. “Personal Information” means any information of an individual person that can be used to identify that person and that is protected by law. If we use subcontractors to facilitate our obligations under the Terms, we will use commercially reasonable measures to ensure that such subcontractors implement and comply with reasonable security measures in handling Your Content, your Personal Information and your Confidential Information.
Data Privacy Laws. We will implement processes and maintain procedures designed to comply with Applicable Laws relating to privacy or security of Personal Information. To the extent that you are required to comply with any Applicable Laws regarding privacy or security of Personal Information, we will facilitate your data security obligations with respect to your Personal Information in our possession or control. Taking into account the nature of our processing of Personal Information, we will implement processes and maintain procedures to enable you to fulfill your obligations under Applicable Laws to respond to data subject requests. If we receive a request from a data subject with respect to your Personal Information in our possession or control, then to the extent legally permissible, we will advise the data subject to submit his or her request to you, and you will be responsible for responding to any such request. We reserve the right to charge a reasonable fee for responding to any data subject requests.
Mutual Warranties. We and you each represents and warrants to the other that (i) it has the authority to enter into the Terms and perform its obligations under the Terms; and (ii) the Terms and its performance under the Terms does not and will not conflict with any other agreement entered into by it.
Service Warranty. With respect to each Service, we warrant that: (i) the Service will perform in all material respects with its applicable, then-current Documentation; (ii) we will not materially reduce the Service features or functionality during the then-current Subscription Term (provided, however, that we may deprecate the Service or Service features or functionality upon expiration of a Subscription Term provided that we have provided at least 90 days’ notice); and (iii) we will use commercially reasonable efforts, using then-current versions of commercially available antivirus software, to ensure that the Service contains no computer virus, Trojan horse, worm, or other similar malicious code. If you notify us of any nonconformity with the warranties in this Section, we will use commercially reasonable efforts to remedy the nonconformity. If we are unable to correct the nonconformity within 30 days of your notice, then, as your sole and exclusive remedy for any nonconformity, you may elect to terminate the subscription, and in such case, as your sole remedy for such non-conformity, we will refund the subscription Fees you paid for the unused portion of the Subscription Term for the non-conforming Service. The refund will be calculated from the date that you notify us of the nonconformity.
The warranties and obligations under this section do not apply to any nonconformity to the extent that it results from (i) any use not in accordance with the Terms or the Documentation; (ii) any modification, damage, or other action by you or any third party; (iii) Your Content; or (iv) any combination with any software, services or other items provided by you or any third party, to the extent such nonconformity would not have arisen but for such combination.
This section states our exclusive warranties, obligations and liabilities, and your exclusive remedies, with respect to defects, deficiencies, or nonconformity of the Services or Documentation. Except as expressly provided herein, to the maximum extent permitted under Applicable Law, we disclaim all other warranties of any kind (express, implied, statutory, or otherwise), including any (i) warranty that the Services will be free from interruptions, bugs, errors, harmful components, defects or deficiencies; (ii) warranty that Your Content will be secure and not lost or damaged; (iii) implied warranty of merchantability or fitness for a particular purpose; (iv) implied warranty arising from course of performance, course of dealing, or usage of trade; and (v) warranty of noninfringement or non-misappropriation.
Your Warranties. You represent and warrant that: (i) the information you provide in connection with the Services, including billing information, is current, accurate, and complete; (ii) you are not on the United States government list of Specially Designated National and Blocked Persons, the United Kingdom’s list of Financial Sanctions Targets, or the European Union’s consolidated list of persons, groups and entities subject to EU financial sanctions; and (iii) you have all rights in and to Your Content necessary to use Your Content in the Services as contemplated by the Terms and the Documentation and to grant us the rights that are set forth in the Terms.
Third-Party Intellectual Property
Third-Party Intellectual Property. All product names, logos and other trademarks, service marks and intellectual property of third parties that appear within the Services are the property of their respective owners.
Third-Party Infringement Claims. If a Service is subject to a claim by a third party alleging that the Service (excluding the Third-Party Applications and the Third-Party Materials) infringes any copyright, trademark or United States patent of such third party (an “Infringement”) and, as a result, your use of the Service is enjoined, we will use commercially reasonable efforts to either: (i) procure the right for you to continue to use the Service or (ii) replace the Service with non-infringing or modified service of materially equivalent functionality. If neither of the above options is available on terms that are commercially reasonable for us, then either you or we may elect to terminate your subscription to the infringing Service and, in such case, as your sole remedy, we will refund the subscription fees you paid for the unused portion of the Subscription Term for the infringing Service. Our obligations under this provision do not apply to any Infringement to the extent it results from (i) use not in accordance with the Terms or the Documentation; (ii) any modification, damage, or other action by you or any third party; (iii) Your Content; or (iv) any combination with any software, services or other items provided by you or any third party, to the extent such Infringement would not have arisen but for such combination.
DMCA Claims. If you believe that your work has been reproduced in connection with the Services in a manner that constitutes copyright infringement, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by sending a written notification to us at the address below, with the following information: (i) a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest, (ii) identification of the copyrighted work claimed to have been infringed, (iii) a description of where the material that you claim is infringing is located within the Services, (iv) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an e-mail address, (v) a signed statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and (vi) a signed statement that the information in the notification is accurate, and under penalty of perjury, that you are the copyright owner or you are authorized to act on behalf of the owner.
Notification pursuant to the DMCA should be submitted to:
Attn: Legal Department
PO Box 135
Wilkeson, WA 98396
You agree to indemnify, defend and hold harmless 1Brand, LLC, its affiliates, and their respective officers, directors, employees, contractors, equity holders, agents, representatives, licensors, licensees and suppliers (the “PL Parties”) from and against any claims, demands, losses, liabilities, expenses, damages and costs (including but not limited to attorney’s fees) resulting from, arising out of or alleging (i) your violation of the Terms; (ii) your violation of Applicable Law; or (iii) that Your Content infringes the intellectual property rights of any third party. If you are an Agency using the Services for Indirect Client Use, then you also agree to indemnify, defend and hold harmless the PL Parties from and against any claims, demands, losses, liabilities, expenses, damages and costs due to or arising out of any client claim or other claim resulting from, arising out of or based on the Indirect Client Use or the Unique Service Output.
We reserve the right, in our sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses.
Release; Limitation of Liability
Release. You agree that you bear all risk and, in consideration of the Services we provide, you hereby release the PL Parties from any and all claims, demands, losses, liabilities and damages (actual and consequential), known and unknown, arising from or connected with your access and use of the Services, now and in the future. You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver. You waive and relinquish all rights and benefits which you have or may have under section 1542 of the civil code of the state of California or any similar provision of the statutory or non-statutory law of any other jurisdiction, to the full extent that you may lawfully waive such rights and benefits.
Limitation of Liability. In no event will the PL Parties be liable to you or any third party for any cost of cover, lost profits or direct, indirect, incidental, special, punitive, or consequential damages whatsoever arising out of, based on, or resulting from your access or use of the Services, whether based on warranty, contract, tort, negligence or any other legal theory, whether or not such damages are foreseeable and whether or not the PL Parties are advised of the possibility of such damages. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
In no event will the collective liability of the PL Parties arising out of or in connection with the Services, your access or use thereof, and the Terms exceed the lesser of (i) the amount you have paid to us for use of the Services in the preceding 12-month period or (ii) if you have not had any payment obligations to us, one hundred dollars.
Claim Deadline. Any claims by you relating to the Services or the Terms must be brought within 12 months from the date the cause of action arose. Claims brought after such period will be VOID.
Binding Arbitration. You agree that any dispute or claim arising out of or relating in any way to your access to or use of the Services, the Terms, or any relationship between us, including but not limited to the validity, applicability or interpretation of the Terms (any of these, a “Dispute”), will be resolved by binding arbitration rather than in court. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
The arbitration will be conducted by the American Arbitration Association (AAA) under its then-applicable rules, including (as appropriate) its Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator Fees will be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that the hearing will be conducted in Pierce County, Washington or the city within the United States in which you reside. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
Class Action Waiver. Any Dispute will be conducted only on an individual basis and not in a class, consolidated or representative action or arbitration or as a named or unnamed member in a class, consolidated, representative or private attorney general legal action. Your access and continued use of the Services signifies your explicit consent to this waiver.
If for any reason a claim proceeds in court rather than in arbitration, you and we waive any right to a jury trial and agree that such claim shall be brought only in courts of competent jurisdiction located in Pierce County, Washington. You hereby submit to the personal jurisdiction and venue of such courts and waive any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any such claim.
Notwithstanding anything to the contrary, you or we may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect intellectual property rights, whether in aid of, pending or independently of the resolution of any Dispute pursuant to the arbitration procedures set forth above.
Governing Law. The Terms and any Dispute will be governed solely by the law of Washington state, without regard to conflict of law provisions. We each irrevocably submit to the personal jurisdiction of the courts located within Pierce County, Washington for the purpose of entering judgments on arbitral awards, without limiting the jurisdiction of any other court.
If you are a client of an Agency using the Services through Direct Client Use, your agreement with that Agency will be governed by the terms of that agreement and by applicable federal, state, and local laws.
Responsibility for Representatives. Each party is responsible for violations of the requirements of the Terms by its Representatives. Any action or omission by a party’s Representative that would be a breach of the Terms by such party if done by such party will be deemed to be a breach by such party.
Notices. We will communicate announcements of general interest by email or by posting on its website or in customer account consoles. We will provide you with legal notices by email, mail, or courier to the most recent address provided by you in your account. You must promptly notify us if your address for notice changes. Except as otherwise specified in the Terms, all notices must be in writing, with account notices sent to email@example.com and legal notices sent to firstname.lastname@example.org.
Assignment. The Terms, and any obligations and rights hereunder, may be transferred or assigned by you only with our prior written consent, but may be assigned by us without restriction and without notice to you.
Severability. The Terms will be enforced to the fullest extent permitted by applicable law. If any provision of the Terms is held to be invalid or unenforceable to any extent, then such provision will be interpreted, construed and reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision, and such invalidity or unenforceability will not affect any other provision of the Terms.
Waiver. No waiver of any provision of the Terms shall be deemed a further or continuing waiver of that or any other provision, and our delay or failure to assert any right or provision under the Terms shall not constitute a waiver of that or any other right or provision.
Force Majeure. A party will not be deemed to be breach of the Terms on account of any delay or failure to perform resulting from any cause or condition beyond such party’s reasonable control (including any act or failure to act by the other party). If a force majeure event delays or prevents our performance, the schedules and/or Fees for our performance will be equitably adjusted, as reasonably determined by us, to reflect the duration and/or severity of such inability to perform. A party seeking relief from performance under this provision must (i) provide notice of the circumstances to the other party as soon as practicable, (ii) use all commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than 30 days, the other party may, in its discretion, terminate the Terms and any applicable Subscription Term. Such termination will not result in any liability to either party, except that, if you so terminate the Terms or a Subscription Term under this provision as a result of our failure or delay, we will refund the subscription fees you paid for the unused portion of the Subscription Term for the affected Service. This provision will not apply to any accrued payment obligation of either party.
Survival. All provisions of the Terms that reasonably should survive termination of the Terms or any subscription shall so survive.
Independent Contractors. You and we are independent contractors. Neither party is an agent, employee, partner or joint venturer of the other, and neither party will have any power or authority to act for, bind or obligate the other party.
Third Party Beneficiaries. The Terms do not create any right of action on the part of any third party (including but not limited to your clients or affiliates), except for the PL Parties and suppliers or others who are party to written agreements with us explicitly giving them third party beneficiary rights.
Attorneys’ Fees. If we take legal action against you as a result of your violation of the Terms, we will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other remedies available to us.
Modification of Services. Except as expressly provided otherwise in the Terms, we reserve the right to modify, restrict access to, or discontinue the Services (or any portion of the Services), temporarily or permanently, with or without notice to you, and we are not obligated to support or update the Services. Unless explicitly stated otherwise, any new features that augment or enhance the current Services shall be subject to the Terms.
No Right to Services. We reserve the right to refuse service to anyone. We reserve the right, with or without notice, and in our sole discretion, to terminate any license to access and use the Services, in whole or in part, and to terminate, limit or prevent any user’s future access to and use of the Services, for any at any time and for any reason (including but not limited to those specifically described in the Terms).
No Reliance on Future Technology or Services. You acknowledge and agree that you have not relied on any future availability of any service offerings, technology, or enhanced or updated features or functionality.
Telephone Calls and Other Communications. When you communicate with us, we may monitor and/or record those communications for quality assurance, customer satisfaction and other purposes. You consent to this monitoring and recording.
Publicity. We may use your name and logo for the purpose of identifying you as our customer.
Contact Us. If you have questions about the Terms, please contact us by email at email@example.com or in writing at 1Brand, LLC, Attn: Legal Department, PO Box 135, Wilkeson, WA 98396.