Shopify App storeLast Updated: July 31, 2024
BrandLift, Inc. (“BrandLift”) owns, operates, and provides the BrandLift Service (as defined in Section 1 below) subject to this Terms of Service Agreement (hereinafter, this “Agreement”). PLEASE READ THIS AGREEMENT CAREFULLY, AS IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS GOVERNING THE ACCESS AND USE OF THE BRANDLIFT SERVICE. PLEASE NOTE: THIS AGREEMENT ALSO CONTAINS AN AGREEMENT TO ARBITRATE IN SECTION 14 BELOW WHICH WILL REQUIRE CUSTOMER TO SUBMIT CLAIMS AGAINST BRANDLIFT TO BINDING AND FINAL ARBITRATION.
ACCEPTANCE OF THIS AGREEMENT: BY CREATING AN ACCOUNT FOR THE BRANDLIFT SERVICE, AND/OR ACCEPTING THE PRICING AND PAYMENT ORDER CONFIRMATION DURING ONBOARDING AND INSTALLATION OF THE BRANDLIFT SERVICE OR ENTERING INTO A WRITTEN OR ELECTRONIC ORDER FORM WITH BRANDLIFT (EACH, AN “ORDER FORM”) TO OBTAIN ACCESS TO THE BRANDLIFT SERVICE (INCLUDING, BUT NOT LIMITED TO, ON A TRIAL BASIS), OR OTHERWISE ACCESSING AND/OR USING THE BRANDLIFT SERVICE IN ANY MANNER, YOU HEREBY EXPRESSLY UNDERSTAND, ACKNOWLEDGE, AND AGREE TO THE FOLLOWING:
- YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW);
- YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW), ON BEHALF OF THE ENTITY OR PERSON NAMED ON THE ACCOUNT IN RESPECT OF WHOM ACCESS AND USE OF THE BRANDLIFT SERVICE WAS OBTAINED (SUCH ENTITY OR PERSON, THE “CUSTOMER”), AND TO BIND CUSTOMER TO THE TERMS OF THIS AGREEMENT; AND
- YOU AGREE THAT CUSTOMER IS ENTERING INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) WITH BRANDLIFT, INC., A DELAWARE LIMITED LIABILITY COMPANY.
IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR DO NOT HAVE SUCH AUTHORITY, DO NOT CREATE AN ACCOUNT OR ACCESS OR USE THE BRANDLIFT SERVICE (OR ANY PART THEREOF). This Agreement was last updated as of the date set forth above. The effective date of this Agreement is the date Customer accepts this Agreement as set forth above (the “Effective Date”).
1.) DEFINITIONS
“Authorized Users” means employees, contractors, or consultants of Customer authorized to use the BrandLift Service on behalf of Customer, subject to the terms of this Agreement.
“Customer Content” means text, images, graphics, logos, trademarks, and all other content of Customer transmitted, uploaded, submitted and/or otherwise provided by or on behalf of Customer in connection with the use of the BrandLift Service.
“Customer Data” means all data and other information transmitted, collected, uploaded and/or submitted through the BrandLift Service, including, but not limited to, through any Implementation Code and/or Widgets installed on the Customer Store, or otherwise provided or made available by Customer and/or any Authorized Users hereunder in connection with the use of the BrandLift Service, but expressly excluding Operational Metrics.
“Customer Store” means the online Shopify store controlled and operated by Customer that Customer connects to the BrandLift Service.
“Documentation” means BrandLift’s then-current technical user manuals, documentation, and/or other materials for the use of the Platform, Implementation Code, and/or Widgets, as applicable, made available to Customer by BrandLift.
“Implementation Code” means any and all implementation and/or deployment code, any and all modified, updated, or enhanced versions thereof, made available by BrandLift to Customer hereunder, and/or generated by or on behalf of Customer in connection with the use of the Platform, that enables Customer to: (a) connect the BrandLift Service with the Customer Store, and (b) deploy Widgets on the Customer Store.
“Intellectual Property Rights” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country, or jurisdiction.
“Operational Metrics” means anonymized statistics, metrics, analytics, and data regarding the performance and operation of the BrandLift Service (or any part thereof) that BrandLift collects in connection with the use of the BrandLift Service, and other operational and technical metrics necessary to manage and perform the BrandLift Service.
“Orders Per Month” or “OPM” means the thirty (30) day order volume of the Customer Store.
“Platform” means BrandLift’s proprietary hosted software platform that enables users to implement e-commerce personalization and merchandising solutions, and any and all modified, updated, or enhanced versions thereof, made available to Customer by BrandLift hereunder.
“BrandLift Service” means the Platform, Widgets, Implementation Code, and/or any related support or other services provided by BrandLift to Customer in connection with the use thereof.
“BrandLift Generated Revenue” or “BGR” means Customer’s gross revenue generated or arising from any interactions with the BrandLift Service and/or Widgets and/or other features utilized by Customer in connection with BrandLift Service, including, but not limited to, adding a product to the cart from any BrandLift merchandising solutions, or tapping on a product to learn more about it from one of BrandLift’s merchandising solutions and subsequently adding the product to the cart, visiting the Customer Store and subsequently making a purchase from any BrandLift landing page feature, and/or any marketing URLs, and/or email/SMS events.
“Service Fees” means the fees due and payable by Customer for the use of the BrandLift Service based on the Customer’s applicable Service Tier. Please see the BrandLift Pricing Page for BrandLift’s current Service Fees and Service Tiers.
“Service Tier” means the applicable service plan for which Customer will be charged, based on the Customer’s OPM or BGR (whichever is greater) in the thirty (30) day period immediately preceding the first day of each Service Term. Please see the BrandLift Pricing Page for BrandLift’s current Service Fees and Service Tiers.
“Service Term” means the period set forth in each applicable Order Form (or if there is no such period set forth in an Order Form, then the thirty (30) day period commencing: (i) on the date Customer first connects the BrandLift Service to the Customer Store, or, (ii) upon expiration of the Trial Period, if Customer has obtained the BrandLift Service on a trial basis as set forth in Section 3.1). The Service Term will automatically renew for successive periods set forth in the applicable Order Form (or if no such renewal periods are set forth in an Order Form, then the Service Term will renew for successive thirty (30) day periods), in each case unless Customer terminates this Agreement, and disconnects and ceases all use of the BrandLift Service, as set forth in Section 5.2 prior to the expiration of the then-current Service Term.
“Trial Period” has the meaning given to such term in Section 3.1.
“Usage Parameters” means any usage parameters and/or restrictions regarding the scope of use of the BrandLift Service specified in the then-current pricing plan, including, but not limited to, OPMs and BGR, the applicable Documentation, Order Form(s), and/or in writing by BrandLift.
“Widgets” means the software application widgets made available by BrandLift to Customer as part of the BrandLift Service.
2.) ACCOUNTS – CUSTOMER DATA AND CONTENT
Accounts. In order to access and use the BrandLift Service, Customer must register an account (“Account”). In registering an Account, Customer agrees to provide and maintain up-to-date information that is true, accurate, current, and complete. In addition, Customer agrees that Customer will not (i) create an Account using a false identity or fictitious name or information, and/or (ii) create an Account or use the BrandLift Service if Customer has been previously removed or banned by BrandLift from use of the BrandLift Service, or any part thereof. Customer understands and agrees that Customer is solely responsible for maintaining the confidentiality of and protecting Customer’s password for the Account. Customer is solely responsible and liable for any use of the BrandLift Service and/or activity originating from the Account, regardless of whether such use and/or activity is authorized by Customer. Customer agrees to notify BrandLift immediately of any unauthorized use of the Account. BrandLift reserves the right to limit the number of Accounts that can be created from a computer or mobile device and the number of computer or mobile devices that can access an individual Account.
Authorized Users. Customer agrees that it shall not permit any person other than Authorized Users to access and use the BrandLift Service and will ensure that its Authorized Users use the BrandLift Service solely in accordance with this Agreement. Customer acknowledges and agrees that Customer is solely responsible for the use of the BrandLift Service by Authorized Users, and any breach of this Agreement by any Authorized User will be deemed a breach by Customer. BrandLift may process personal data about Customer’s or its Authorized User’s use of the BrandLift Service (“Account Data”) in accordance with its Privacy Notice available at: [BrandLift Privacy Notice URL]. Account Data is not Customer Content or Customer Data.
Customer Data & Customer Content. As between Customer and BrandLift, subject to the licenses expressly granted to BrandLift herein, Customer shall retain all right, title, and interest in and to Customer Data and Customer Content. Customer grants to BrandLift a non-exclusive, royalty-free, fully-paid, worldwide right and license to use, process, reproduce, display, modify, incorporate, and perform the Customer Data and Customer Content for the purpose of hosting, operating, and providing the BrandLift Service and otherwise developing, improving, training, optimizing, and otherwise exploiting in any medium BrandLift’s products, services, and technologies during the term of the Agreement. Customer represents and warrants that: (i) Customer has all the rights and/or authorizations necessary to grant BrandLift the licenses granted herein in and to Customer Data and Customer Content; and (ii) none of the Customer Data and/or Customer Content violates or will violate this Agreement, any applicable laws, rules or regulations, or any third party’s intellectual property or other proprietary rights.
Data Processing Addendum. Customer acknowledges and agrees that as between Customer and BrandLift, Customer is the data controller and/or business and BrandLift is merely a data processor and/or service provider as such terms are defined pursuant to applicable data protection laws. Each party shall comply with the Data Processing Addendum available at: [BrandLift Data Processing Addendum URL], the terms of which are incorporated herein by reference.
Personal Data of Children. Customer agrees not to upload, transmit, and/or submit through, or in connection with the use of, BrandLift Service, or otherwise provide to BrandLift any personal data about individuals that Customer knows or has reason to know are under the age of 13 or the equivalent age as specified by law in the applicable jurisdiction (e.g., 16 years of age if you are located in the EEA). If Customer discovers or reasonably believes that it has or may have uploaded, transmitted, submitted, and/or otherwise provided any personal data about individuals under the age of 13 or the equivalent age as specified by law in the applicable jurisdiction to BrandLift and/or through, or in connection with the use of, the BrandLift Service, Customer agrees to, and shall, immediately remove such information from BrandLift’s systems (including, without limitation, the BrandLift Service and Customer’s Account) and immediately notify BrandLift of such occurrence.
3.) ACCESS AND USE OF SERVICES
Service Term; Trial Period. Subject to the terms and conditions of this Agreement (including payment of applicable fees), BrandLift will provide Customer access to the BrandLift Service during the Service Term (including any renewal thereof, and until the expiration of the last Service Term under each applicable Order Form). For the avoidance of doubt, Customer acknowledges and agrees that each Service Term will automatically renew for successive periods as set forth in the applicable Order Form (or if no such renewal period is set forth in the applicable Order Form, then for successive thirty (30) day periods), in each case unless Customer terminates this Agreement, and disconnects and ceases all use of the BrandLift Service, as set forth in Section 5.2 prior to the expiration of the then-current Service Term. If Customer has obtained the BrandLift Service on a trial basis, Customer will have a period of fourteen (14) days from the date Customer first connects the BrandLift Service to the Customer Store or such other period expressly agreed to in writing by BrandLift, to use the BrandLift Service on a trial basis (the “Trial Period”). Customer acknowledges and agrees that upon expiration of the Trial Period, the Service Term will automatically start, and Customer will automatically be charged for applicable Service Fees due and payable for Customer’s applicable Service Tier in accordance with Section 4, unless Customer terminates this Agreement, and disconnects, and ceases all use of the BrandLift Service, as set forth in Section 5.2 prior to the end of the Trial Period.
Access to the Platform. Subject to the terms and conditions of this Agreement (including payment of applicable fees), BrandLift grants to Customer a non-exclusive, non-sublicensable, non-transferable limited right during the Trial Period, if applicable, and the Service Term, to: (i) permit Authorized Users to access and use the Platform, over the internet, to generate and deploy Widgets; (ii) to install the Implementation Code on the Customer Store to connect the BrandLift Service and deploy and display the applicable Widgets on the Customers Store; and (iii) reproduce and use a reasonable number of copies of the Documentation in support of the exercise of the licenses and rights granted in this Section 3.2. The licenses granted to Customer hereunder are limited to Customer’s use for its own internal business purposes, in accordance with this Agreement and the Documentation, and subject to any applicable Usage Parameters. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TRIAL VERSION IS PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE BRANDLIFT ROI GUARANTEE SET FORTH IN SECTION 6, OR ANY SUPPORT OR OTHER SERVICES (INCLUDING ANY UPDATES OR UPGRADES).
Access to Beta-Version and Features. From time to time, BrandLift, in its sole discretion, may make certain beta versions of and/or beta features and/or functionality of the BrandLift Service available to Customer to try at its option at no additional charge which are clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description (collectively, “Beta Version and Features”). For the avoidance of doubt, any Beta Version and Features made available by BrandLift to Customer hereunder are included in the defined term “BrandLift Service” as used throughout this Agreement. If Customer elects to access Beta Version and Features made available to Customer by BrandLift, BrandLift grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Beta Version and Features solely for Customer’s internal evaluation and subject to any and all technical limitations implemented in the Beta Versions and Features and/or other usage parameters or restrictions specified by BrandLift for the Beta Version and Features. In addition to the restrictions set forth in Section 3.4 below, Customer shall not access and/or use the Beta Version and Features (i) for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purpose, or (ii) without the express prior written approval of BrandLift if Customer is a direct competitor of BrandLift. In addition, Customer acknowledges and agrees that the Beta Versions and Features and any Feedback (as defined below in Section 3.7) regarding the Beta Versions and Features are the confidential information of BrandLift and Customer shall not disclose any such confidential information to any third party. BETA VERSIONS AND FEATURES ARE PROVIDED AS-IS, ARE NOT SUPPORTED, AND MAY BE SUBJECT TO ADDITIONAL TERMS AS SPECIFIED BY BRANDLIFT IN WRITING AND/OR IN THE APPLICABLE DOCUMENTATION FOR THE BETA VERSIONS AND FEATURES. BrandLift reserves the right to terminate Customer’s access to any Beta Versions and Features at any time, for any reason.
Restrictions and Prohibited Uses. Customer agrees that Customer will not, and it will not permit any third party (including, without limitation, any Authorized User) to: (i) modify, adapt, translate or create derivative works based on the BrandLift Service (or any part thereof) or Documentation; (ii) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure, or organization) of the Platform, Widgets and/or Implementation Code; (iii) distribute, license, sublicense, assign, transfer or otherwise make available to any third party the BrandLift Service (or any part thereof) and/or Documentation; (iv) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of BrandLift or its suppliers on or within the BrandLift Service and/or Documentation; (v) interfere with or disrupt the integrity or performance of the BrandLift Service (or any part thereof), or any system, network, or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the BrandLift Service; (vi) attempt to gain unauthorized access to the BrandLift Service (or any part thereof), or its related systems or networks; (vii) frame or utilize framing techniques to enclose the BrandLift Service or any portion thereof; (viii) use any meta tags, “hidden text”, robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license, or download the BrandLift Service, content, or the personal information of others without BrandLift’s prior written permission or authorization; (ix) use the BrandLift Service (or any part thereof) to hack, spam, or phish BrandLift or BrandLift’s other users; (x) use the BrandLift Service to store or transmit any malicious or unsolicited code or software, or store, transmit or upload any material and/or content that is false, inaccurate, illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, infringing, libelous, tortious, or otherwise objectionable in BrandLift’s reasonable opinion, or to store, transmit or upload any material or content that violates any third party’s intellectual property rights and/or privacy rights; (xi) impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity; or (xii) violate any applicable local, state, national or international law (including, without limitation, U.S. and foreign export laws concerning the transmission of technical data and other regulated materials) in Customer’s use of the BrandLift Service.
Third-Party Integrations. The BrandLift Service may allow Customer to connect to and/or use certain third-party products, services, or software (including, without limitation, data products and services), through scripts and/or APIs made available by the owner of such third-party software or services (collectively “Third Party Integrations”). Third Party Integrations are not owned, controlled, or operated by BrandLift and are subject to separate terms and conditions of the applicable third-party provider. If Customer decides to access and use such Third Party Integrations, Customer’s use is governed solely by the terms and conditions of such Third Party Integrations, and BrandLift does not endorse, is not responsible for, and makes no representations as to such Third Party Integrations, their content or the manner in which they handle Customer’s data. BrandLift is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s access or use of any such Third Party Integrations, or Customer’s reliance on the privacy practices or other policies of such Third Party Integrations. BRANDLIFT DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES ADVERTISED OR OFFERED THROUGH, OR IN CONNECTION WITH, THE SERVICE (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY INTEGRATIONS CONNECTED TO THE SERVICE), OR ANY HYPERLINKED WEBSITE OR SERVICE, AND BRANDLIFT WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN CUSTOMER AND THIRD-PARTY PROVIDERS OF SUCH THIRD PARTY PRODUCTS OR SERVICES AND/OR THIRD PARTY INTEGRATIONS.
Operational Metrics. BrandLift monitors and collects Operational Metrics for its own business purposes, such as improving, testing, and maintaining the BrandLift Service and related machine learning algorithms, and developing additional products and services. Customer grants to BrandLift a non-exclusive, irrevocable, transferable, worldwide, and royalty-free license to (i) collect, analyze, and use Operational Metrics, for the purposes set forth above, and (ii) modify, reorder, augment, and/or manipulate Customer Data and related Operational Metrics for its own internal business purposes for sourcing and machine learning algorithms. BrandLift may only publicly distribute Operational Metrics in aggregate, non-personally identifiable form that identify Customer or any individual Authorized User or end user of the Customer Store.
BrandLift Proprietary Rights. BrandLift and/or its licensors shall retain all rights, title, interest, in and to, and ownership of the BrandLift Service (and all parts thereof), Documentation, and any text, graphics, images, music, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the BrandLift Service (but excluding Customer Content and Customer Data), and all copyright, patent, trade secret, trademark, and other intellectual property and proprietary rights thereto. All rights that are not explicitly granted in this Agreement are reserved by BrandLift and its licensors. To the extent that any ideas, suggestions, improvements and/or other feedback regarding any aspect of the BrandLift Service and/or Documentation, including, without limitation, the functioning, features, and other characteristics thereof are provided by or on behalf of Customer and/or any Authorized User (collectively, “Feedback”), Customer hereby grants BrandLift, its subsidiaries, affiliates and partners a worldwide, irrevocable, perpetual, royalty-free, non-exclusive, sublicensable and transferable license under all Customer’s intellectual property rights in the Feedback to exploit and use for any purpose, without compensation or attribution.
Changes and Modifications. BrandLift reserves the rights to either temporarily or permanently modify, suspend or discontinue the BrandLift Service (or any part thereof) with or without notice. Customer agrees that BrandLift will not be liable to Customer or to any third party for any modification, suspension or discontinuance of the BrandLift Service (or any part thereof).
4.) FEES – PAYMENT TERMS
Service Fees. Customer agrees to, and shall, pay to BrandLift the applicable Service Fees based on the Customer’s applicable Service Tier for each Service Term. BrandLift reserves the right, at any time, to increase the fees payable hereunder, and/or change, update, or modify BrandLift’s pricing and/or payment terms; provided that, any increase in fees applicable to Customer shall not take effect until the start of the next Service Term.
Payment Terms. Unless otherwise set forth in the applicable Order Form and/or otherwise expressly agreed in writing by BrandLift, the Service Fees shall be due and payable by Customer in advance on or before the first day of the Service Term (and each renewal thereof). Except where BrandLift has agreed to invoice Customer for the Service Fees (which shall be at BrandLift’s sole discretion), the Service Fees will be automatically billed and charged to Customer’s Payment Method (as defined below) by BrandLift’s third-party payment processors (currently, Shopify and Stripe). Invoiced fees, if applicable, will be due and payable by Customer in accordance with the payment terms in the applicable invoice. Customer expressly agrees that BrandLift or its third-party payment processors may bill and charge Customer for the applicable Fees due and payable by Customer hereunder and any applicable Taxes (defined below) and any other charges that Customer may incur in connection with the use of the BrandLift Service, and Customer hereby authorizes BrandLift (through its third-party payment processors) to charge all such Service Fees, Taxes, and other charges to the credit card, or other payment method provided by Customer (the “Payment Method”), in accordance with the billing terms in effect at the time a fee or charge is due and payable. To the extent that any amounts owed by Customer cannot be collected from or through the Payment Method(s), Customer is solely responsible for paying such amounts by other means. If payment is not received or cannot be charged to Customer for any reason in advance, BrandLift reserves the right to suspend or terminate Customer’s and its Authorized User’s access to the BrandLift Service and/or terminate this Agreement. All fees are listed and payable in United States Dollars (USD). Except as otherwise expressly set forth in this Agreement, all fees are non-refundable and non-cancellable.
Taxes. The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and Customer is and shall be responsible for payment of all such taxes (other than taxes based on BrandLift’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the BrandLift Service, or performance of any services by BrandLift hereunder.
5.) TERM – TERMINATION
Term. The term of this Agreement commences on the Effective Date and will remain in effect during the Service Term (including any renewal thereof), or until terminated in accordance with this Agreement (whichever is sooner). Each Service Term shall automatically renew as set forth in Section 3.1.
Termination. Customer may terminate this Agreement by disconnecting the BrandLift Service from Customer’s Shopify account, and ceasing all access to the BrandLift Service and permanently uninstalling the BrandLift Service from the Customer Store. Customer acknowledges and agrees that notwithstanding any termination of this Agreement, the Service Fees are non-refundable and non-cancellable. At any time, BrandLift may (i) suspend or terminate Customer’s and/or any Authorized User’s right to access or use the BrandLift Service (or any part thereof), or (ii) terminate this Agreement with respect to Customer if BrandLift, in good faith, believes that Customer has used the BrandLift Service (or any part thereof) in violation of this Agreement, including any incorporated guidelines, terms, or rules.
Effect of Termination. Upon termination of this Agreement for any reason, all outstanding fees immediately become due and payable, including, without limitation, any Service Fees due and payable for the remainder of the then-current Service Term, and Customer’s and its Authorized Users’ right to access and use the BrandLift Service will automatically terminate. In addition, provided that Customer has paid BrandLift all amounts due and payable under this Agreement, BrandLift will permit Customer to export a copy of the Customer Data and Customer Content, following BrandLift’s receipt of Customer’s written request to export such Customer Data within thirty (30) days of the date of termination. Thereafter, BrandLift will have no obligation to retain Customer Data. The following Sections will survive any termination or expiration of this Agreement: 1, 2, 3.4, 3.5, 3.6, 3.7, 4, 5.3, and 7 through 16.
6.) BRANDLIFT ROI GUARANTEE
Subject to the terms and conditions hereof, if, during any Service Term, the Service Fees paid by Customer for the Service Term exceed Customer’s BGR during the Service Term, BrandLift will refund the Service Fees paid by Customer. The ROI Guarantee is conditioned on the following:
(i) Customer must have the BrandLift Service installed for the entirety of the Service Term, and Customer must use a good faith effort to implement the Widgets, including, but not limited to, the cross-sells and up-sells and other personalizations, on the Customer Store in accordance with BrandLift documentation and best practices (Customer will not be eligible for a refund if Customer fails to properly implement the BrandLift Service, fails or makes no effort to use the BrandLift Service, or fails to follow BrandLift’s best practice documentation),
(ii) Customer must be up to date on all payments and amounts due and payable under this Agreement,
(iii) Customer must not be in breach of this Agreement, and
(iv) Customer must submit its claim for the ROI Guarantee within sixty (60) days following the date Customer was billed the Service Fees for the applicable Service Term.
THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND BRANDLIFT’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY, FOR ANY FAILURE OF THE BRANDLIFT SERVICE TO MEET THE ROI GUARANTEE. FOR THE AVOIDANCE OF DOUBT, THE ROI GUARANTEE SHALL NOT APPLY TO CUSTOMER FOR THE USE OF THE BRANDLIFT SERVICE DURING THE TRIAL PERIOD, OR WHERE CUSTOMER HAS OTHERWISE OBTAINED THE BRANDLIFT SERVICE ON A FREE BASIS.
7.) INDEMNIFICATION
Customer shall indemnify, defend, and hold BrandLift and its affiliates and subsidiaries, and their respective officers, directors, shareholders, employees, contractors, agents, successors, and assigns (collectively, “BrandLift Indemnified Parties”), harmless from and against any and all liability, losses, claims, expenses (including reasonable attorneys’ fees), demands, or damages of any kind, arising out of or related to (i) Customer’s breach of this Agreement or any license or other agreement applicable to any Third Party Integrations; (ii) allegations that the Customer Content, or Customer’s activities in connection with, or use of, the BrandLift Service (or any part thereof), violate any applicable laws, rules, or regulations, or infringe or misappropriate the intellectual property rights of any third party; (iii) Customer Data or a violation of any applicable privacy law, rule, or regulation by Customer; and/or (iv) Customer’s use of the BrandLift Service. BrandLift shall promptly notify Customer in writing of such action, give Customer sole control of the defense thereof and any related settlement negotiations, and, at Customer’s reasonable request and expense, cooperate and assist in such defense. Under no circumstances shall Customer enter into any settlement that involves an admission of liability, negligence, or other culpability of any BrandLift Indemnified Party or requires any BrandLift Indemnified Party to contribute to the settlement without BrandLift’s prior written consent. BrandLift and any BrandLift Indemnified Party may participate and retain its own counsel at its own expense.
8.) DISCLAIMER
EXCEPT FOR THE BRANDLIFT ROI GUARANTEE DESCRIBED IN SECTION 6 ABOVE, THE BRANDLIFT SERVICE (AND ALL PARTS THEREOF), DOCUMENTATION, AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY BRANDLIFT, ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND BRANDLIFT AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, OR NON-INFRINGEMENT. BRANDLIFT AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE BRANDLIFT SERVICE (OR ANY PART THEREOF), DOCUMENTATION, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY BRANDLIFT OR CONTENT MADE AVAILABLE THROUGH THE BRANDLIFT SERVICE: (I) WILL MEET CUSTOMER’S REQUIREMENTS; (II) WILL BE COMPATIBLE WITH CUSTOMER’S NETWORK, COMPUTER OR MOBILE DEVICE, OR ANY THIRD PARTY PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY INTEGRATIONS; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE BRANDLIFT SERVICE, AND ALL RESULTS OF SUCH USE IS SOLELY AT CUSTOMER’S OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM BRANDLIFT, ANY THIRD PARTY, OR THROUGH THE BRANDLIFT SERVICE, SHALL CREATE ANY WARRANTY.
9.) LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT SHALL BRANDLIFT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL OR OTHER DAMAGES RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE BRANDLIFT SERVICE (OR ANY PART THEREOF), AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY BRANDLIFT, EVEN IF BRANDLIFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT TO THE EXTENT SUCH DAMAGES ARISE DIRECTLY AND SOLELY FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF BRANDLIFT, AND (II) IN NO EVENT SHALL BRANDLIFT’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE BRANDLIFT SERVICE (OR ANY PART THEREOF), AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY BRANDLIFT HEREUNDER EXCEED THE GREATER OF THE SERVICE FEES PAID OR PAYABLE TO BRANDLIFT BY CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION, OR ONE HUNDRED DOLLARS ($100.00). THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES AGREE THAT THIS SECTION REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT BRANDLIFT WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION. THIS ALLOCATION OF RISK IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. BRANDLIFT DISCLAIMS ALL LIABILITY OF ANY KIND OF BRANDLIFT’S LICENSORS AND SUPPLIERS.
10.) APPLICATION OF LIMITATIONS AND DISCLAIMERS TO CONSUMERS
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in Sections 8 and 9 above may not apply to Customer if Customer is deemed a consumer. The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in this Agreement shall apply to Customer as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where Customer is located.
11.) CONFIDENTIALITY
Each party (the “Disclosing Party“) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party“) certain proprietary and non-public information regarding the Disclosing Party’s products, services, and business (collectively, “Confidential Information“). Without limiting the foregoing, Confidential Information of BrandLift shall include the Implementation Code, Documentation, Feedback, any reports generated or made available through the BrandLift Service, and any non-public technical and business information regarding the Platform, Widgets, and/or any other BrandLift products and/or services. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for the purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Confidential Information shall not include information that: (i) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party without any obligation of confidentiality; (ii) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; or (iii) is, or through no fault of the Receiving Party, or its employees and contractors, has become, generally available to the public. The Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party without violating its obligations under this Section to the extent that such disclosure is (a) approved in writing by the Disclosing Party, (b) necessary for the Receiving Party to enforce its rights under this Agreement; or (c) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control promptly upon the written request of the Disclosing Party or the termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section. Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (1) as required by law, or (2) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed is under a duty of confidentiality). The obligations of confidentiality under this Section shall survive the termination or expiration of this Agreement for a period of five (5) years.
12.) AVAILABILITY OF SERVICES
Information describing The BrandLift Service is accessible worldwide, but this does not mean The BrandLift Service, or certain portions thereof, are available in Customer’s country. BrandLift may restrict access to The BrandLift Service, or portions thereof, in certain countries in its sole discretion. It is Customer’s responsibility to make sure Customer’s use of The BrandLift Service is legal in Customer’s country of residence. The BrandLift Service may not be available or accessible in all languages. If, at BrandLift’s reasonable determination, Customer uses The BrandLift Service or any other material or services provided by BrandLift to Customer in a manner that violates laws or creates an excessive burden or potential adverse impact on BrandLift’s systems, BrandLift may, without liability to BrandLift, immediately suspend or terminate Customer’s access to The BrandLift Service. This is in addition to any of BrandLift’s other rights or remedies.
13.) ELECTRONIC COMMUNICATIONS
By using The BrandLift Service, Customer consents to receiving electronic communications from BrandLift. These electronic communications may include, but are not limited to, notices about applicable fees and charges, transactional information, service updates, and other information concerning or related to Customer’s use of The BrandLift Service. These electronic communications are part of Customer’s relationship with BrandLift and Customer receives them as part of Customer’s access and use of The BrandLift Service. Customer agrees that any notices, agreements, disclosures or other communications that BrandLift sends Customer electronically will satisfy any legal communication requirements, including that such communications be in writing. Customer is responsible for maintaining a valid email address associated with their account. BrandLift may provide the option for Customer to opt out of certain non-essential communications, subject to legal requirements and service functionality.
14.) GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement will be governed by the laws of the State of Wisconsin, United States of America without giving effect to any conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from this Agreement. Furthermore, this Agreement (including without limitation, the Platform and any software and services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
Disputes. Except as otherwise set forth in this Agreement, any dispute between the parties arising out of or relating to this Agreement, the BrandLift Service (or any part thereof), or Customer’s use, or inability to use, any part of the BrandLift Service (collectively, “Disputes”) shall be governed by the provisions set forth in this Section.
Informal Resolution. Before resorting to formal dispute resolution in accordance with this Section, Customer agrees to first contact BrandLift directly by email at [email protected] to seek an informal resolution to any Dispute. In the event the Dispute is not resolved within thirty (30) days after submission, either party may institute arbitration proceedings in accordance with the procedures set forth in this Section, provided that such proceedings are initiated within sixty (60) days after the end of the informal resolution period.
Agreement to Arbitrate. Except as otherwise expressly set forth in this Agreement, any and all Disputes of every kind, arising out of or related to this Agreement (whether contractual or non-contractual) shall be subject to final, binding and confidential arbitration conducted by the American Bar Association under its rules of arbitration in force as of the date such Dispute is referred for arbitration (the “Rules”). To the extent there is any conflict between the provisions set forth in this Section and the Rules or any procedural or other rules issued by the arbitrator, this Section will control. The parties shall appoint a single arbitrator by mutual agreement; provided that, if the parties cannot agree on an arbitrator, the arbitrator(s) shall be selected according to the Rules. The seat of the arbitration shall be Brown County, Wisconsin, United States of America, unless otherwise mutually agreed by the parties in writing. The arbitrator(s) and the parties shall comply with the following: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; (iii) all arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing; (iv) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction; and (v) the language of the arbitration shall be English. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of the Agreement to Arbitrate. If either party challenges the right of the other party to obtain arbitration of a dispute between them, or otherwise seeks to file a court action notwithstanding the agreement of the parties to arbitrate disputes, any such legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced solely in the state and federal courts located in Brown County, Wisconsin, United States of America, and each party hereto irrevocably submits to the exclusive jurisdiction and exclusive venue of any such court in any such suit, action or proceeding. In the event of a legal suit, action or proceeding regarding a matter which is determined to be subject to arbitration under this Agreement, the party which obtains the determination that the matter is subject to arbitration shall be entitled to an award of its costs and reasonable attorney’s fees in such legal suit, action or proceeding. Notwithstanding the Agreement to Arbitrate, either party may seek injunctive or other equitable relief in any court with competent jurisdiction, to prevent immediate harm arising from any actual or alleged violation of a party’s Confidential Information or Intellectual Property Rights pending arbitration of any remaining claims. The costs of arbitration shall be shared equally by the parties, unless the arbitrator determines otherwise.
Severability. If any provision of this arbitration agreement is found to be unenforceable, that provision shall be severed, and the remainder of the arbitration agreement shall remain in full force and effect.
15.) MODIFICATIONS TO THIS AGREEMENT
BrandLift reserves the right to update or modify this Agreement at any time. The revised Agreement will be posted on BrandLift’s website located at https://www.brandlift.io/legal/terms-of-service. Except as stated below with respect to material changes, all updates and modifications to this Agreement will be effective from the day they are posted online, as indicated by the “Last Updated” date set forth above.
If BrandLift makes any material changes to this Agreement, BrandLift will provide at least 30 days’ prior notice to Customer of these changes by sending a notification to the email address BrandLift has on file for Customer, or, if BrandLift does not have an email address on file, by posting a prominent notice on BrandLift’s website www.brandlift.io and/or through the user interface of the Platform. Material changes to this Agreement will become effective on the date set forth in the notice.
It is Customer’s responsibility to regularly visit and review this Agreement for updates, changes and modifications. If Customer does not agree to any updates or modifications to this Agreement, Customer should discontinue use of or access to the BrandLift Service and, if applicable, terminate the Account. Customer’s and/or any of its Authorized Users’ continued access or use of the BrandLift Service (or any part thereof) after the applicable effective date of the revised Agreement will constitute Customer’s acceptance of the revised Agreement.
16.) GENERAL
16.1 Assignment. Neither the rights nor the obligations arising under this Agreement are assignable by Customer, and any such attempted assignment or transfer shall be void and without effect.
16.2 Waiver. Any waiver of any provision of this Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by this Agreement shall not be deemed a waiver of that right.
16.3 Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from this Agreement and shall not affect the legality, enforceability or validity of the remainder of the provisions set forth in this Agreement.
16.4 Independent Contractors. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in this Agreement and its performance shall be construed as creating a joint venture or agency between BrandLift and Customer.
16.5 Third-Party Beneficiaries. This Agreement is not intended to grant rights to anyone except Customer and BrandLift, and in no event shall this Agreement create any third party beneficiary rights.
16.6 Subcontractors. BrandLift may delegate the performance of any services hereunder to its affiliates and contractors.
16.7 Entire Agreement. This Agreement and any other policies or terms and conditions referenced herein, constitute the entire agreement between the parties regarding the subject matter, and supersede all prior oral or written agreements or communications with regard to the subject matter described.
16.8 Notice. Any notice to Customer may be provided by email.
16.9 Headings. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement.
16.10 Interpretation. As used in this Agreement, the word “including” means “including but not limited to.” Customer agrees that this Agreement will not be construed against BrandLift by virtue of having drafted them.
16.11 Language. The official text of this Agreement (and any notice submitted hereunder) will be in English. The parties acknowledge that they require that this Agreement be drawn up in the English language only. Les parties reconnaissent qu’elles ont exigé que la présente convention soit rédigée en language anglaise seulement. In the event of any dispute concerning the construction or meaning of this Agreement, reference will be made only to this Agreement as written in English and not to any translation into another language.
16.12 Force Majeure. Any delay in performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, or any other event beyond the reasonable control of such party.
16.13 Survival. Sections [insert relevant section numbers] of this Agreement shall survive the termination or expiration of this Agreement.
17.) QUESTIONS AND ADDITIONAL INFORMATION
If you have any questions about this Agreement, please contact BrandLift LLC: Email: [email protected]
For accessibility accommodations or to request this Agreement in an alternative format, please contact us using the information above.
Note: This Agreement should be read in conjunction with our Privacy Policy, which can be found at https://brandlift.io/privacy