BRANDBASSADOR TERMS & CONDITIONS
These Terms and Conditions apply to the use of the Brandbassador Platform and forms part of Brandbassador’s Subscription License Agreement (the “Agreement”). When first registering as a subscriber on the Brandbassador Platform, users are required to accept these Terms & Conditions through the online registration process. If and when these Terms & Conditions are amended or revised, the so amended and revised Terms & Conditions will be made available on the Brandbassador website www.brandbassador.com/terms for approval.
Brandbassador, a corporation organized and existing under the laws of the Kingdom of Norway, with its head office located at Brandbassador, 155 Curtain Road, EC2A 3QY, London, UK (“Brandbassador”), is the owner of the domain name registration and software platform Brandbassador.com.
Brandbassador has created a website (the “BB Website”) and technology (the “BB Technology”) and authorizes individuals and entities to become members of Brandbassadors.com (the “Brandbassadors”) and to utilize the BB Website and the BB Technology (collectively, the “BB Platform”) to promote third party brands (a “Brand” and “Brands”) and induce consumers to purchase goods and services of those third party brands in return for a commission on the sale of those products and services (the “BB Service”).
Brandbassador offers Brands the right to utilize the BB Platform to engage with the Brandbassadors and through them promote their brands, products and services on external social media platforms (“Brand Programs”).
Brandbassador offers Brands the ability to expose their brands to Brandbassador’s constantly increasing pool of Brandbassadors. If Brands are visible to these Brandbassadors, the Brandbassadors will at their own discretion have the opportunity to request to follow one or more Brands on the platform. If approved by Brands, the Brandbassadors will become brand promotional agents for the Brands.
The Brandbassadors, as part of the process of applying to become a Brandbassador on the BB Platform, are required to enter into a Terms of Service Agreement with Brandbassador, the most recent version of which, as updated, is available on Brandbassador.com.
By accepting these Terms and Conditions, the Brands, recognizing that the BB Platform is still in Beta phase and fully understand and accept that parts of the BB Services may not be 100% functional.
- Content On The BB Platform
- Brand Content. When using the BB Platform, a Brand may share, by posting or transmitting, various content, included but not limited to videos, photos, sound clips and comments (“Brand Content”). The Brand is solely responsible for its Brand Content and the consequences of sharing it using the BB Platform. The Brand therefore warrants, acknowledges and agrees that it owns and/or has the necessary licenses and other rights to use and share the Brand Content on the BB Platform and that Brandbassador is not responsible for prescreening any Brand Content that is posted or transmitted on the BB Platform.
- Brandbassador Content. When using the BB Platform, the Brandbassadors may post or transmit various content, included but not limited to videos, photos, sound clips and comments (“Brandbassador Content”). Brandbassador Content is not the content of Brandbassador, but of the individual Brandbassadors who posts or transmits the content and who holds all rights, including intellectual property rights, in and to the Brandbassador Content. Pursuant to Brandbassador’s Terms of Service Agreement with the Brandbassadors, the Brandbassadors have granted Brandbassador a non-exclusive, sub-licensable and royalty-free worldwide license to use, reproduce, make available to the public, publish, translate, modify, create derivative works from, and distribute the Brandbassador Content in connection with the use of the BB Website (the “Brandbassador Content License”). Brandbassador therefore grants the Brands a license to make use of the Brandbassador Content on the explicit acknowledgement and agreement by the Brands that (i) Brandbassador disclaims any and all representations and warranties relating to the ownership or rights of the Brandbassadors in and to the Brandbassador Content, including the right to grant the Brandbassador Content License to Brandbassador, (ii) Brandbassador is not responsible for prescreening any content that is posted or transmitted on the BB Platform by the Brandbassadors, and (iii) any use made by a Brand of any Brandbassador Content is therefore made at the Brands’ own risk, cost and expense.
- The Brands understand that the BB Platform is a SaaS platform; a software tool that helps the Brands to automate Brandbassadors to do marketing tasks for the Brands. A Brand is solely responsible for managing its Brand Program. Brandbassador does not monitor or interfere with the Brands’ Brandbassadors behavior outside of the BB Platform. The Brand is solely responsible for managing its BB Programs and making sure that the Brandbassadors follow the Brand’s policies.
- Intellectual Property And Proprietary Rights
- The BB Technology. The Brands acknowledge and agree that Brandbassador , its subsidiaries, affiliates and/or licensors own all right, title and interest in and to the BB Technology and any and all copyrights, trademarks, patents, trade secrets and any other intellectual property and proprietary rights therein.
- Trademarks and logos. The Brandbassador marks and logo, and all related product and service names, design marks and slogans are the trademarks, service marks or registered trademarks of Brandbassador, its subsidiaries, affiliates and/or licensors and may not be used or modified in any manner without the prior written consent of Brandbassador.
- The BB Website. Copyrights, trademark rights, database rights, design rights and any and all other intellectual property and other rights relating to the BB Website, existing now or in the future, including but not limited to all Brandbassador Content and any other computer programs, source and object code, documentation, software graphics, text, images, designs, animations, databases, logos, domain names, trade names and trade identities are the property of Brandbassador, its subsidiaries, affiliates and/or licensors. All Brandbassador software applications are licensed, not sold, to the Brands, and Brandbassador, its subsidiaries, affiliates and/or licensors retain ownership of all copies of the Brandbassador software applications, even after installed on personal computers, mobile handsets, tablets, and/or other relevant devices.
- Brandbassador Trade Secrets and Know-How. The Brands acknowledge and agree that the network of, and all information relating to, Brandbassadors, including their individual identities and contact information, and all information relating to all other users of the BB Service (including without limitation publishers and advertisers), whether in Brandbassador’s registers and databases or disclosed on the BB Website, and any and all data and statistics related to the use of the BB Service are the trade secrets, know-how and proprietary information of Brandbassador and its subsidiaries.
- Brandbassador Content. Unless expressly granted in writing by Brandbassador, no rights in or to the Brandbassador Content except those expressly set forth herein are granted to the Brands. All Brandbassador Content are licensed, not sold, to the Brands, and Brandbassador, its subsidiaries, affiliates and/or licensors retain all rights and ownership to all Brandbassador Content even after installed on personal computers, mobile handsets, tablets, and/or other relevant devices.
- Brand Material. Brandbassador acknowledges and agrees that the Brands are the owners (or licensees) of their respective Brand Content and any and all trademarks, tradenames, logotypes and designs (in whatever form) that is submitted to Brandbassador and/or uploaded on the BB Platform and/or the BB Website by/on behalf of the Brands (collectively, the “Brand Materials“). The Brands are the owners (and/or licensees) of any and all intellectual property rights in their respective Brand Materials (the “Brand Materials IP“), and nothing in this Agreement, including these Terms and Conditions, shall operate to assign or otherwise transfer any Brand Materials IP which is and shall remain the exclusive property of the Brands.
- Brandbassador grants the Brands a limited, non-exclusive, revocable license to make use of the BB Website and the BB Technology, and a limited, non-exclusive, revocable license to make use of the Brandbassador Content. Brandbassador does not grant any rights to the Brands to download, copy, store, transfer, edit, transmit, distribute or otherwise use or exploit the Brandbassador Content shown or made available by the BB Service, except as part of the BB Service. The license shall remain in effect until the termination of a Brand’s Agreement, or, if earlier, until terminated by Brandbassador.
- The Brands agree not to (i) reverse engineer, decompile, translate, adapt, and modify the BB Technology or any part thereof; (ii) copy, display, disclose, sell, lease, co-brand the BB Technology, or any part thereof, in any form; (iii) sub license, or otherwise transfer or permit third parties to use the rights and licenses granted hereunder; (iv) use the BB Technology in any fashion that may infringe any patent, copyright, trademark, trade secret or any other intellectual property or proprietary rights of Brandbassador, its subsidiaries, affiliates and/or licensors or any other third party; or (v) remove any copyright, trademark, patent or other intellectual property notices.
- Brandbassador and the Brands are responsible for the compliance with their own respecticve data protection obligations, in particular under the General Data Protection Regulation (EU) 2016/679.
- The BB platform, BB service and the Brandbassador content are provided “as is”. Brandbassador, its subsidiaries and affiliates, and its licensors and suppliers, to the fullest extent permitted by law, disclaim all warranties, either express or implied, statutory or otherwise, including but not limited to the implied warranties of merchantability, non-infringement of third parties’ rights, and fitness for particular purpose. Specifically, Brandbassador makes no representations or warranties about the security of the website or about the accuracy, reliability, completeness, suitability or timeliness of the brandbassador content, software, text, graphics, tools, links, or other communications provided in or through the use of BB platform, or any site or sites “linked” to the BB website. Brandbassador makes no warranty that the BB platform will be available, uninterrupted, error free or free of viruses or other harmful components. Brandbassador disclaims any and all responsibility and liability arising out of data security breaches, including without limitation costs, damages and losses related to unauthorized access to data by third parties, or for loss of data for any reason.
- Further, the BB platform is dependent on several third party integrations and API calls. Changes to these integrations and API calls by one or more third parties may cause disruption in services at any time, as well as permanent disruptions and changes to the platform. the bb platform is also dependent on the continuous approval by the apple app store, without which the BB platform can only be offered as desktop and mobile browser versions.
- To the fullest extent permitted by applicable law, in no event shall Brandbassador or any of its subsidiaries, affiliates, directors, officers, employees or agents be liable for any damages (including, without limitation, incidental and consequential damages, personal injury/wrongful death, lost profits, or damages resulting from lost data or business interruption) resulting from the use or inability to use the BBplatform or any Brandbassador content, or any failure of performance, error, omission, interruption, effect, delay or defect in operation or transmission, virus, line or system failure, or loss of use related to the BB platform, whether based on warranty, contract, tort, or any other legal theory, and whether or not Brandbassador are advised of the possibility of such damages. If a Brand is dissatisfied with the BB service, or if the BB platform or any portion of it is not fully available to the Brand, the Brand’s sole and exclusive remedy shall be to discontinue the use of the BB Service, and the Brand shall not be entitled to a refund of any license fees paid.
A Brand agrees to defend, indemnify and hold harmless Brandbassador and its subsidiaries, affiliates, directors, officers, employees and agents against any claims, demands, actions, damages or other liabilities, including expenses and attorney’s fees, that arise from the Brand’s use of the BB Service and any Brandbassador Content. Brandbassador reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by a Brand, in which event the Brand will cooperate with Brandbassador in asserting any available defenses.
- Brandbassador Confidential Material. The Brands agree not to disclose Brandbassador Confidential Material without prior written consent and the Brands and agree to only use Brandbassador Confidential Material for the purposes of the Agreement and BB Service. “Brandbassador Confidential Material” includes, without limitation, all software, technology, programming, specifications, materials, guidelines and documentation relating to the BB Service; statistics related to the use of the BB Service provided to a Brand by Brandbassador, any and all information relating to Brandbassadors, including their individual identities and contact information, and all other users of the BB Service (including, without limitation, publishers and advertisers), Brandbassador’s business partners and other third parties, to the extent such information is provided to a Brand in connection with the BB Service or included in any reports or other communications relating thereto, or is otherwise provided to a Brand by Brandbassador; and any other material designated in writing by Brandbassador as “Confidential” or an equivalent designation. Brandbassador Confidential Material does not include material that: has become publicly known through no breach by a Brand; material that has been independently developed by a Brand without access to Brandbassador Confidential Material, as evidenced in writing; rightfully received by a Brand from a third party; or required to be disclosed by law or by a governmental authority.
- Brand Confidential Material. Save for as required for the contemplated use by a Brand of the BB Platform or the BB Services, Brandbassador agrees not to disclose Brand Confidential Material without the Brand’s prior written consent and Brandbassador agrees to use it only for the purpose of the Agreement and provision of services hereunder. “Brand Confidential Material” includes information provided by a Brand to Brandbassador. Brand Confidential Material does not include material that has become publicly known through no breach by Brandbassador, material that has been independently developed without access to the Brand Confidential Material, rightfully received by Brandbassador from a third party, or required to be disclosed by law or by a governmental authority.
A Brand’s Subscription Term will automatically extend for consecutive terms with a duration equal to the initial Subscription Term, as specified on the Brand’s Service Order Form, unless the Agreement is terminated by notice by Brandbassado or the Brand at least 30 days before the end of the term.
- Payment Obligations Upon Termination
Upon termination of the Agreement for any reason, the Brand shall immediately pay any outstanding commissions, fees and other other amounts properly due under the terms of the Agreement to Brandbassador and to the Brandbassadors participating in the Brand Program.
Any notice required by the Agreement, including these Terms and Conditions, or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.
If to a Brand:
The address specified on its Service Order Form.
If to Brandbassador:
ATTN: Head of Sales
155 Curtain Road
EC2A 3QY, London, UK
The Agreement, including these Terms and Conditions, shall be interpreted, construed, enforced and governed in accordance with the laws of the Kingdom of Norway
- Arbitration And Class Action Waiver
- Arbitration. Any dispute, controversy, or claim arising out of, related to or in connection with the Agreement, including these Terms and Conditions, or to the performance, non-performance, interpretation, breach, termination or invalidity thereof, or any claim that a party to the Agreement may assert in any individual, representative or collective capacity or as part of a class, whether based in contract, tort, or otherwise, shall be finally settled and determined solely and exclusively by arbitration administered by the International Chamber of Commerce (the “ICC“) under its then current Rules of Conciliation and Arbitration (the “ICC Rules“). The written award of the arbitrators shall be final and binding upon the parties, and judgment on or enforcement of the award so rendered may be sought, had or entered in any court having jurisdiction
- Initiation of Arbitration. Any party may initiate arbitration by filing a written request for arbitration with the Secretariat of the ICC. A copy of the request shall be furnished to all other parties in accordance with the provisions of the ICC Rules and the provisions herein concerning Notices.
- Appointment of Arbitrators. Each party shall appoint an arbitrator, and after consultation with the parties the ICC shall appoint a third arbitrator. Each arbitrator so appointed shall have an international reputation as being experienced in the legal and technical matters related to the dispute.
- Location of the Arbitration. The seat of arbitration shall be Oslo, Norway. The arbitrators may hold hearings at such other locations as the arbitrators shall determine, after consultation with the parties.
- Language of Arbitration. The arbitral proceedings and all pleadings and written evidence shall be in the English language. Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or true copy thereof.
- Terms of Reference. In addition to those matters required by the ICC Rules to be included in the Terms of Reference, the arbitrators shall, after consultation with the parties, include within the Terms of Reference appropriate provisions which:
- require the disclosure of all exhibits expected to be used by the parties at the arbitration, and the exchange of complete copies of all such exhibits in advance of the arbitration;
- determine the dates for the exchange of said written disclosures and copies of said exhibits;
- require the written disclosure of the identity of all witnesses whom the parties expect to call at the arbitration;
- determine the dates for the exchange of the written disclosures of the identity of witnesses which the parties expect to call at the arbitration;
- determine the dates for the exchange of sworn narrative statements containing the testimony of all witnesses whom the parties expect to call at the arbitration;
- require that the sworn narrative testimony of witnesses be submitted in substitution for the direct examination of the witness, and that all witnesses whose sworn testimony is submitted for consideration by the arbitrators must present him or herself for cross examination at the time and place of the arbitration hearing, unless some other procedure providing the parties with a full and complete opportunity for cross examination has been established and provided by the arbitrators, the parties and the witness;
- prohibit, except upon a showing of good cause, or for purposes of rebuttal, the receipt into evidence of any exhibit not disclosed by the parties, nor shall the arbitrators permit a party to present the testimony of any witness whose identity and testimony was not exchanged prior to the arbitration; and
- permit discovery as reasonable and necessary for the orderly preparation of the dispute for hearing and determination of the dispute (said discovery may include requests for production of documents and depositions of witnesses who cannot be summoned to the arbitration or are otherwise unavailable to attend the arbitration).
- Limitation on Remedies. The arbitrators are precluded from awarding punitive or exemplary damages, and may not award any indirect, special, incidental or consequential damages. In no event shall the arbitrators have the powers of an amiable compositeur.
- Resort to the Courts. Nothing in the Agreement, including these Terms and Conditions, prohibits any party from seeking interim or conservatory relief in any court of competent jurisdiction; provided, however that neither the filing of an application for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, nor the granting of such relief, shall be deemed to be a waiver of the obligation of the party to have the dispute heard and determined solely and exclusively by arbitration.
- Waiver of Jury Trial, Court Trial, Other Court Proceedings or Right to Participate in Class Arbitrations or Actions. Except to the extent set forth in Paragraph (g) above, or otherwise in aid of arbitration, the parties understand and knowingly waive their rights to a jury trial, court trial, or other court proceeding, and expressly waive any right they may have to commence or participate in any representative, class, collective or consolidated actions or disputes in court, in arbitration or in any other forum. A Brand agrees that it will not file a class action or collective action against Brandbassador, will not participate in a class action or collective action against Brandbassador, and will not join its claims to those of any other person. Notwithstanding any other provision in these Terms of Service, if this class action waiver is invalidated, then the agreement to arbitrate is null and void, as though it were never entered into. Any dispute at that time in arbitration will be dismissed without prejudice and refiled in a court. Under no circumstances does Brandbassador or the Brands agree to class or collective procedures in arbitration or the joinder of claims in arbitration.
If any provision of the Agreement, including these Terms and Conditions, is unlawful, void or unenforceable, the Parties agree that the provision will be enforced to the maximum extent permissible and the remaining provisions shall continue in full force and effect.
Headings used in these Terms and Conditions are provided for convenience only and shall not be used to construe meaning or intent.
The provisions of Sections 3, 6 through 9, and 11 through 14 shall survive the expiration or termination of the Agreement.
The Agreement, including these Terms and Conditions, constitutes the entire agreement between the parties with respect to the subject matter set forth therein, and supersedes all proposals, oral or written, all previous negotiations, and all other communications between the parties.