These Terms provide that all disputes between you and BrandForward will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the “Dispute Resolution and Arbitration” section below for the details regarding your agreement to arbitrate any disputes with BrandForward.
1. Eligibility. You must be at least eighteen (18) years of age to use the Site. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you have not previously been suspended or removed from the Site; and (c) your use of the Site is in compliance with all applicable laws and regulations.
2. User Content
2.1 User Content Generally. Certain features of the Site may permit users to submit content to the Site, including messages, reviews, photos, video, images, folders, data, text, and other materials generated solely by you ( “User Content”) and to publish User Content on the Site. You retain ownership of copyright and any other proprietary rights that you may hold in the User Content that you post to the Site.
2.2 Limited License Grant to BrandForward. By submitting User Content, you grant BrandForward a irrevocable, perpetual, worldwide, non-exclusive, fully-paid, royalty-free right and license (with the right to sublicense) to copy, create derivative works, host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed), including but not limited to the Site, and any third-party social media accounts controlled by BrandForward. BrandForward’s use of your User Content may be without any compensation paid to you. For the avoidance of doubt, the license granted above extends to offline media formats, including without limitation in connection with the public display of User Content in actual physical spaces. Photos submitted by users shall not be used by BrandForward for marketing or merchandising purposes and will not be commercialized by BrandForward in any way.
Third party Sites are not under our control, and we are not responsible for any third party Site’s use of your User Content.
2.3 User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
a. you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize BrandForward and users of the Site to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 2 and in the manner contemplated by BrandForward, the Site, and these Terms;
b. you are the parent or legal guardian of any persons under the age of eighteen (18) featured in any User Content you submit, upload or post; and
c. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right of a third-party; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause BrandForward to violate any law or regulation.
2.4 User Content Disclaimer. We are under no obligation to review, edit, post or otherwise control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. BrandForward may, however, at any time and without prior notice, screen, remove, edit, crop, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable as determined in our sole discretion. You understand that when using the Site you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable to you. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against BrandForward with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, BrandForward does not permit copyright-infringing activities on the Site.
3. Accounts and Registration. To use or submit content to the Site or to access other features of the Site, you may be required to provide us with some information about yourself, such as your e-mail address or other contact information. You agree that the information you provide to us is accurate and up to date.
4. Digital Millennium Copyright Act
4.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet Site providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Site, you may contact our Designated Agent:
Any notice alleging that materials hosted by or distributed through the Site infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Site;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of those materials on the Site is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
4.2 Repeat Infringers. BrandForward will promptly deny users that are determined by BrandForward to be “repeat infringers” access to the Site. A repeat infringer is a user who has been notified of infringing activity or has had User Content removed from the Site at least twice.
5. Prohibited Conduct. BY USING THE SITE YOU AGREE NOT TO:
5.1 use the Site for any illegal purpose or in violation of any local, state, national, or international law;
5.2 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
5.3 submit, post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
5.4 interfere with security-related features of the Site, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Site except to the extent that the activity is expressly permitted by applicable law;
5.5 use any robot, spambot, spider, crawler, scraper or other automated means or interface not provided by us to access the Site or to extract data;
5.6 interfere with the operation of the Site or any user’s enjoyment of the Site, including by: (a) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Site; (c) attempting to collect, personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Site, or violating any regulation, policy, or procedure of any network, equipment, or server;
5.7 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Site account without permission, or falsifying your age or date of birth;
5.8 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 10) or any right or ability to view, access, or use any Material; or
5.9 attempt to do any of the acts described in this Section 5, or assist or permit any person in engaging in any of the acts described in this Section 5.
6. Third-Party Sites and Linked Websites. BrandForward may provide tools through the Site that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on BrandForward with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share”buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Site may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
7. Termination of Use; Discontinuation and Modification of the Site. If you violate any provision of these Terms, your permission from us to use the Site will terminate automatically. We also reserve the right to modify or discontinue the Site at any time (including by limiting or discontinuing certain features of the Site) without notice to you. We will have no liability whatsoever on account of any change to the Site or any suspension or termination of your access to or use of the Site.
8.2 Additional Terms. Your use of the Site is subject to all additional terms, policies, rules, or guidelines applicable to the Site or certain features of the Site that we may post on or link to from the Site (the “Additional Terms“), such as rules applicable to a particular feature or content on the Site, subject to Section 2 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
9. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change. We may provide notice through a pop-up or banner within the Site, by sending an email to any address you may have provided to us, or through other mechanisms. Generally, modifications to the Terms are effective upon publication, provided that if the changed Terms materially modify your rights or obligations, the changes are effective upon the earlier of (a) your using the Site with actual knowledge of the change, or (b) thirty days following publication of the modified Terms, and further provided that disputes arising under these Terms will be resolved in accordance with the Terms in effect that the time the dispute arose. If you do not accept the changed Terms, you may not continue access to and use of the Site.
10. Ownership; Proprietary Rights. The Site is owned and operated by BrandForward. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, Sites, and all other elements of the Site (“Materials”) provided by BrandForward are protected by intellectual property and other laws. All Materials contained in the Site are the property of BrandForward or our third-party licensors. Except as expressly authorized by BrandForward, you may not make use of the Materials. BrandForward reserves all rights to the Materials not granted expressly in these Terms.
11. Indemnity. You agree that you will be responsible for your use of the Site, and you agree to defend and indemnify BrandForward and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “BrandForward Entities“) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Site; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
12. Disclaimers; No Warranties
THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. BRANDFORWARD ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. BRANDFORWARD ENTITIES DO NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING ANY OF BrandForward ENTITIES OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SITE, YOUR DEALING WITH ANY OTHER SITE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SITE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SITE AND ANY ASSOCIATED WEBSITES OR SITES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SITE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SITE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
13. Limitation of Liability
IN NO EVENT WILL BRANDFORWARD ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TOACCESS OR USE, THE SITE OR ANY MATERIALS OR CONTENT ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY BRANDFORWARD ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF BRANDFORWARD ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TOTHE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and BrandForward agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for the purpose of litigating any dispute. We operate the Site from our offices in San Francisco, California, and we make no representation that Materials included in the Site are appropriate or available for use in other locations.
16. Dispute Resolution and Arbitration
Generally. In the interest of resolving disputes between you and BrandForward in the most expedient and cost effective manner, you and BrandForward agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BrandForward ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of Section 1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek
injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and BrandForward will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules“) of the American Arbitration Association (“AAA“), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting BrandForward.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice“). BrandForward’s address for Notice is: firstname.lastname@example.org. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand“). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or BrandForward may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or BrandForward must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, BrandForward will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by BrandForward in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
Fees. If you commence arbitration in accordance with these Terms, BrandForward will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco, CA, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse BrandForward for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND BrandForward AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and BrandForward agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications. If BrandForward makes any future change to this arbitration provision (other than a change to BrandForward’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to BrandForward’s address for Notice, in which case your account with BrandForward will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
Enforceability. If Section 6 is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 14 will govern any action arising out of or related to these Terms.
18. Contact Information. The Site is offered by BrandForward LLC. You may contact us by emailing us at email@example.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the address above with your electronic mail address and a request for these Terms.