Last Modified: January 14, 2020
Please review this End User License Agreement (the “Agreement” or “EULA”) carefully. Wherever used in this Agreement, “you”, “your”, “Customer”, and similar terms mean the person or legal entity accessing or using the Enterprise Services. For the avoidance of doubt, if you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, “you”, “your” or “Customer” means the company or other legal entity that you are using the Services on behalf of.
By agreeing to an Order Form referencing this Agreement or by accessing or using the Enterprise Services offered by BranchUp Inc. (“BranchUp”, “we” or “us”), you are confirming that you have read, understand and accept this Agreement. This Agreement can be updated from time to time in accordance with Section 10.5 below. You are responsible for regularly reviewing the most current version of this Agreement, which is published at: https://branchup.com/legal/eula. When we change this Agreement, we will update the “Last Modified” date above.
This Agreement applies only to Enterprise Services purchased through a Solution Partner, as further defined below. The terms that apply to the use of BranchUp’s publicly available websites or use of other services (such as BranchUp’s Free plans) (the “Self-Serve Services”) are available at www.branchup.com/legal/terms. The terms that apply to Enterprise Services purchased directly from BranchUp are available at BranchUp www.branchup.com/legal/enterprise-terms.
By signing an Order Form referencing this Agreement or accessing or using the Enterprise Services, you confirm that:
A “Solution Partner” is a party authorized by BranchUp to resell Enterprise Services and/or Partner Services to you.
An “Order Form” is a document issued by a Solution Partner and that is signed or otherwise agreed to by you, which describes the Enterprise Services and/or Partner Services you are purchasing, including the fees, the quantities purchased, and any other details specifically related to those services.
“Content” is a generic term that means all information and data (such as text, images, photos, videos, audio and documents) in any format that is uploaded to, downloaded from or appears on our Enterprise Services.
“Customer Content” is Content that you or your Authorized Users provide to us or upload to our Enterprise Services.
|“Ads Content” is Customer Content that you or your Authorized Users provide in connection with your creation, posting, or management of paid advertisements on Facebook, Instagram, or any other applicable Social Network.|
“Enterprise Services” means services included in BranchUp’s Enterprise plan and any other BranchUp products or services made available to you through an Order Form but does not include: i) BranchUp’s Self-Serve Services; or ii) any Third-Party Services.
“Third-Party Services” are services that are not provided by BranchUp that you may access or use in connection with our Enterprise Services. They include the “Social Networks”, which are the social networking sites supported by our Enterprise Services (such as Twitter, Facebook, LinkedIn, and Instagram), and the “Partner Services”, which are third-party services you may subscribe to through a Solution Partner.
2.1 Enterprise Services. During the Term, subject to the terms and conditions of this Agreement, we will: (a) make the Enterprise Services available to you in accordance with the applicable Order Form; and (b) host and serve the Enterprise Services in accordance with the Service Level Agreement published at www.branchup.com/legal/enterprise-service-level-agreement.
2.2 BranchUp Professional Services. If the Enterprise Services as described in your Order Form include professional services (such as account set-up, provisioning, or training) (“BranchUp Professional Services”), the BranchUp Professional Services Terms published at www.branchup.com/legal/professional-services-terms also apply to and govern those BranchUp Professional Services.
2.3 Advertising Terms. If you use the Enterprise Services to create and manage Ads Content on any Social Network, the BranchUp Ads Terms published at www.branchup.com/legal/ads-terms also apply to and govern that use.
2.4 Beta Testing. From time to time, we may offer you the opportunity to install, use and test certain BranchUp services prior to their commercial release (“Beta Services”). Use of the Beta Services is optional. If you use any Beta Services, the BranchUp Beta Terms published at www.branchup.com/legal/beta-terms apply to and govern those Beta Services.
2.5 Updates. Our Enterprise Services evolve constantly. So long as we do not breach the warranty set out in Section 9.2(a), we may change our Enterprise Services (such as by changing, adding or removing features) at any time, for any reason, and may or may not provide notice of those changes to you.
2.6 Social Networks. Our Enterprise Services interact with Social Networks and depend on the availability of those Social Networks and the features and functionality they make available to us, which we do not control and may change without notice. If at any time a Social Network stops making some or all of its features or functionality available to us, or available to us on reasonable terms as determined by BranchUp in its sole discretion (each an “API Change”), we may stop providing access to those features or functionality and we will not be liable to you or any third party for any such change.
3.1 Acceptable Use. You and your Authorized Users must comply with the Acceptable Use Rules (published at www.branchup.com/legal/acceptable-use) and all applicable laws. If you or any of your Authorized Users do not comply with the Acceptable Use Rules or any applicable laws, we may remove any of your Content and temporarily suspend or restrict your access to the Enterprise Services without prior notice. In such case, we will then notify you and, where applicable, will work with you in good faith to resolve the issue.
3.2 Customer Content. You are solely responsible for Customer Content. We may, but do not have to, review, filter, block or remove Content, including Customer Content.
3.3 Submitted Content. If you use the Enterprise Services for contests or otherwise ask people to submit Content through the Enterprise Services (“Submitted Content”), you acknowledge and agree that:
(a) the Enterprise Services do not help you comply with any laws, rules, or regulations that may apply to your collection or use of Submitted Content, which is solely your responsibility; and
(b) we will not be liable to you or any third party for the Submitted Content, and we make no warranty that any Submitted Content obtained or displayed through the Enterprise Services is accurate or complete.
3.4 Account Information. You are responsible for the completeness, security, confidentiality and accuracy of the account information you provide to us. You will promptly notify us of any unauthorized access to or use of your log-in credentials or account.
4.1 Third-Party Content. We are not responsible for Content provided by others, including Mentions and Content from Third-Party Services (such as Content from Social Networks and apps from the App Directory). You and anyone else who accesses our Enterprise Services may access Content that might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. We will not be liable to you or any third party for Content provided by others.
4.2 Third-Party Services. If you access or purchase a Third-Party Service, you do so at your own risk. Your relationship with the Third-Party Service provider is an agreement between you and them. If you access or enable a Third-Party Service, you grant them permission to access or otherwise process your data as required for the operation of the Third-Party Services. We will not be liable for disclosure, use, changes to, or deletion of your data or for losses or damages you may suffer from access to your data by a Third-Party Service. We make no representation and will have no liability or obligation whatsoever in relation to the content or use of, or correspondence, agreements or transactions with, any Third-Party Services. You must comply with all agreements and other legal requirements that apply to Third-Party Services.
4.3 Partner Services. Without limiting the generality of Section 4.2, if you purchase any Partner Services, you: (a) acknowledge and agree that we and the Solution Partner are each acting solely as an authorized reseller for such Partner Services; and (b) expressly agree to be bound by the terms and conditions applicable to such services listed at www.branchup.com/legal/third-party-terms or as otherwise set out in the applicable Order Form.
5.1 Enterprise Services. We keep all rights and interests in our Enterprise Services. The Enterprise Services contain Content owned or licensed by BranchUp (“BranchUp Content”). BranchUp Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and BranchUp, we own and retain all rights in the BranchUp Content.
5.2 Feedback. We welcome your suggestions, comments, bug reports, feature requests or other feedback (“Feedback”). We do not have to keep Feedback confidential, even if you tell us it is confidential, provided we do not disclose that you are the source of any Feedback. If you provide Feedback, you grant BranchUp a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback for any purpose.
5.3 Customer Content. You retain your rights to any Customer Content you submit, post or display on or through the Services. You grant us a non-exclusive, worldwide, sublicensable, royalty-free license to use, host, run, copy, reproduce, process, adapt, translate, publish, transmit, display and distribute your Customer Content for the purposes of providing and supporting the Services. We may also use aggregated information derived in part from your Customer Content and your use of the Services for the purposes of enhancing and developing our products and services.
6.1 Term of Agreement. This EULA will commence on the date you agree to an Order Form with a Solution Partner, and will continue in effect for the term described in such Order Form. Except as expressly stated otherwise in the applicable Order Form, each Order Form will automatically renew for subsequent one-year renewal periods unless you, we or the Solution Partner gives written notice of non-renewal at least sixty (60) days prior to the end of the then-current term. BranchUp reserves the right to increase the fees for Enterprise Services and/or Partner Services on renewal by providing you with written notice thereof (which notice may be provided by email) at least ninety (90) days prior to the end of the then-current term. Notwithstanding the foregoing, in no event shall the term of this Agreement or any Order Form exceed the term agreed to in writing between BranchUp and the Solution Partner for your account.
6.2 Termination for Cause. A party may terminate this Agreement for cause (a) immediately if the other party has failed to cure a material breach within thirty (30) days of receiving written notice of that material breach from the other party; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
6.3 Effects of Termination. Upon termination of this Agreement for any reason: (a) all Order Forms will automatically terminate; and (b) your access to BranchUp accounts, Enterprise Services and Partner Services will be terminated and you will immediately cease all use thereof. If you terminate this Agreement in accordance with Section 6.3, BranchUp will refund any Fees you paid in advance for the Enterprise Services and Partner Services applicable to the period after termination. If BranchUp terminates this Agreement in accordance with Section 6.3, then you will pay any unpaid Fees for the remainder of the term of each Order Form. In no event will termination of this Agreement relieve you of your obligation to pay any amounts payable for the period prior to the date of termination.
6.4 Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive and such other provisions that expressly or by their nature are intended to survive termination will survive the expiration or termination of this Agreement. Without limiting the foregoing, Sections 5, 8, and 9 will survive the expiration or termination of this Agreement.
7.1 Late Payment. Upon thirty (30) days’ written notice from BranchUp or the Solution Partner to you provided after the due date of any fees for Enterprise Services and/or Partner Services, we may suspend your access to the Enterprise Services and/or Partner Services if you have not paid the amounts owing in full.
8.1 Confidential Information. BranchUp and you may exchange “Confidential Information” in the course of your negotiation and use of our Enterprise Services. BranchUp’s Confidential Information may include non-public information about our pricing, personnel, or partnerships, our product roadmap, our security documentation, or other non-public information we identify as confidential. Your Confidential Information may include non-public information about your policies (such as your policies for internal review or approval of Customer Content), personnel (including names and email addresses of your Authorized Users), or plans or strategies (such as marketing plans or social strategies you share with BranchUp in the course of our delivery of BranchUp Professional Services), but does not include any Content published, communicated, or transmitted to or through a Social Network account. When either you or we (the “recipient”) receive Confidential Information from the other (the “discloser”), the recipient will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and will not disclose or use any Confidential Information of the discloser for any purpose outside of the scope of this Agreement. Information will not be considered Confidential Information if (i) it was lawfully in the recipient’s possession before receiving it from the discloser; (ii) it is provided in good faith to the recipient by a third party without breaching any rights of the discloser or any other party; (iii) it is or becomes generally available to, or accessible by, the public through no fault of the recipient; or (iv) it was or is independently developed by the recipient without reference to the discloser’s Confidential Information. In the event that the recipient or any representative of the recipient becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the recipient will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.
8.2 Enterprise Security Standards. During the Term, we will use commercially reasonable efforts to maintain the following “Enterprise Security Standards”:
(a) Security Practices. BranchUp will implement and maintain security practices as described at https://branchup.com/legal/security-practices.
(b) Reports. Upon request no more than once annually, BranchUp will provide you with (a) a copy of its most recent security audit report (which may include summaries of test results or equivalent measures taken to assess the effectiveness of its control environment), (b) a summary of its most recent penetration testing results, or (c) both.
(c) Disaster Recovery and Business Continuity. BranchUp has and will maintain a disaster recovery and business continuity plan.
(d) Breach Notification. BranchUp will notify you within 72 hours of becoming aware of any unauthorized access to your BranchUp account (a “Breach”), will promptly take all necessary steps to mitigate the Breach, and will provide you with reasonable cooperation in investigating the Breach (including, on request and to the extent reasonable, providing you with copies of relevant records, logs, or other materials).
WARRANTIES & DISCLAIMER
9.1 Mutual Warranties. Each of BranchUp and Customer represents and warrants that (a) it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement; and (b) it will perform its obligations and duties and exercise its rights under this Agreement in compliance with all laws applicable to it.
9.2 BranchUp Warranties. BranchUp warrants that: (a) subject to an API Change, the functionality of the Enterprise Services will not be materially decreased during the term of the applicable Order Form; (b) to its knowledge, the Enterprise Services do not contain any malicious code or viruses; and (c) BranchUp is an authorized reseller of any Partner Services sold to Customer in an Order Form.
(a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE OFFER OUR ENTERPRISE SERVICES “AS IS” AND ARE NOT MAKING, AND TO THE GREATEST EXTENT PERMITTED BY LAW EXPRESSLY DISCLAIM, ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY AND NON-INFRINGEMENT, THAT OUR ENTERPRISE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT OUR ENTERPRISE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR-FREE. USE OUR ENTERPRISE SERVICES AT YOUR OWN RISK.
(b)UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY THIRD-PARTY SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES, OR ACTIVITIES OF THIRD PARTIES, OR ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
(c) WE ARE NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE FOR THE CONTENT MADE AVAILABLE THROUGH THE ENTERPRISE SERVICES, INCLUDING CUSTOMER CONTENT, MENTIONS, AND ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. BRANCHUP DOES NOT CONTROL OR VET CONTENT AND IS NOT RESPONSIBLE FOR WHAT USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE ENTERPRISE SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
9.4 Indemnification by BranchUp. Subject to Customer’s compliance with Section 9.6, BranchUp will defend Customer from and against any and all third-party claims that the use of the Enterprise Services as permitted hereunder directly infringes a valid U.S. or Canada patent or copyright or misappropriates a third party’s trade secret (a “Claim”) and will indemnify Customer for any damages awarded by final non-appealable judgment against, and for reasonable legal fees incurred by, Customer in connection with any such Claim.
BranchUp will have no liability for any Claim to the extent it arises from:
(i) a modification of the Enterprise Services by or at the direction of any person other than BranchUp;
(ii) use of the Enterprise Services in violation of this Agreement or applicable law;
(iii) use of the Enterprise Services after BranchUp notifies Customer to discontinue use because of an infringement or misappropriation claim;
(iv) the combination, operation, or use of the Enterprise Services with any other software, program, or device not provided or specified by BranchUp to the extent such infringement would not have arisen but for such combination, operation, or use; or
(v) use of the Enterprise Services in a manner that is inconsistent with their intended use.
For the avoidance of doubt, BranchUp’s indemnification obligations in this Section 9.4 will not apply to third-party content, open source software, Social Networks, Partner Services or other Third-Party Services accessed through the Enterprise Services, or to Customer Content or Mentions.
If the Enterprise Services or any part thereof have become, or in BranchUp’s opinion are likely to become, the subject of any Claim, BranchUp may at its option and expense:
(1) procure for Customer the right to continue using the Enterprise Services as set forth hereunder;
(2) replace or modify the Enterprise Services or applicable functionalities to make them non-infringing; or
(3) if options (1) or (2) are not reasonably practicable, terminate either or both this Agreement or the Order Form for such Enterprise Services and refund to Customer any unearned Fees that Customer paid in advance for such Enterprise Services.
This Section 9.4 sets forth BranchUp’s sole liability (and Customer’s sole remedy) regarding infringement or misappropriation of third-party rights.
9.5 Indemnification by Customer. Customer will defend, indemnify, and hold harmless BranchUp, its Affiliates, and its or their directors, officers, employees, agents, shareholders, successors and assigns from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred in connection with or arising out of a third-party claim: (a) alleging that Customer Content, Ads Content, or Submitted Content infringes or violates the intellectual property rights, privacy rights, or any other rights of a third party or violates any applicable law; (b) arising from Customer’s breach of Section 3.1; or (c) relating to, or arising from, Customer’s use of any Third-Party Services (including Customer’s breach of any terms or conditions applicable to any Third-Party Services).
9.6 Indemnification Procedure. The indemnified party will: (a) give written notice of the claim to the indemnifying party promptly and in any event no later than ten (10) days after the indemnified party receives the claim; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not enter into any settlement, compromise or consent to judgment with respect to any claim without the indemnified party’s prior written consent unless such settlement, compromise or consent to judgment unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with reasonable cooperation and assistance at the indemnifying party’s expense.
LIMITATIONS OF LIABILITY
9.7 Maximum Liability. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 9.7 THROUGH 9.9, AND NOT INCLUDING CUSTOMER’S OBLIGATION TO PAY ALL FEES OWED FOR THE ENTERPRISE SERVICES, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE ENTERPRISE SERVICES SUBJECT TO THE CLAIM DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. FOR CLARITY, THE CALCULATION OF EACH PARTY’S LIABILITY UNDER THIS SECTION 9.7 EXCLUDES ANY FEES PAID BY CUSTOMER FOR ANY PARTNER SERVICES, EVEN WHERE BRANCHUP’S ENTERPRISE SERVICES ARE BUNDLED WITH OR OTHERWISE PROVIDED IN CONJUNCTION WITH PARTNER SERVICES. THE LIMITATIONS OF LIABILITY IN THIS SECTION 9.7 ALSO APPLY TO OUR AFFILIATES AND THE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS OF BRANCHUP AND OUR AFFILIATES (THE “BRANCHUP PARTIES”) AND TO CLAIMS BROUGHT BASED ON ANY CAUSE OF ACTION, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHER LEGAL OR EQUITABLE THEORY.
9.8 Excluded Damages.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR LOSS OF PROFITS, GOODWILL OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE ENTERPRISE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT.
(b) The Enterprise Services support multi-factor authentication, and the Acceptable Use Rules require you to maintain the confidentiality of your passwords or other login credentials for the Enterprise Services. ACCORDINGLY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BRANCHUP BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM UNAUTHORIZED ACCESS TO OR USE OF THE ENTERPRISE SERVICES OR YOUR ACCOUNT OR THE CONTENT OR INFORMATION CONTAINED THEREIN IF: (A) THE UNAUTHORIZED ACCESS OR USE COULD HAVE BEEN PREVENTED THROUGH YOUR USE OF MULTI-FACTOR AUTHENTICATION; OR (B) YOU OR ANY OF YOUR AUTHORIZED USERS FAIL TO MAINTAIN THE CONFIDENTIALITY OF ANY PASSWORD OR OTHER LOGIN CREDENTIALS.
(c) WITHOUT LIMITING SECTION 9.8(b), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BRANCHUP BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM UNAUTHORIZED ACCESS TO OR USE OF THE ENTERPRISE SERVICES OR YOUR ACCOUNT OR THE CONTENT OR INFORMATION CONTAINED THEREIN, EXCEPT TO THE EXTENT BRANCHUP’S BREACH OF THE ENTERPRISE SECURITY STANDARDS RESULTS IN THE UNAUTHORIZED DISCLOSURE OF YOUR CONFIDENTIAL INFORMATION.
(d) YOUR EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES ARE SET FORTH IN THE ENTERPRISE SERVICE LEVEL AGREEMENT.
9.9 Exclusions. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR WILL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF EITHER PARTY FOR (I) INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (II) DEATH OR BODILY INJURY CAUSED BY THE NEGLIGENCE OF THAT PARTY, ITS EMPLOYEES, OR ITS AGENTS; (III) WILLFUL MISCONDUCT OF THAT PARTY OR ITS EMPLOYEES; OR (IV) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
9.10 Basis of Bargain. THE ESSENTIAL PURPOSE OF SECTIONS 9.7 THROUGH 9.9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF BRANCHUP WERE TO ASSUME ANY FURTHER LIABILITY. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
10.1 Assignment. Neither party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the other party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, we may assign this Agreement in its entirety (including all Order Forms), without your consent, to our Affiliate, or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our shares or assets.
10.2 Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
10.3 Publicity. Unless you provide us with written notice to the contrary or of any reasonable restrictions or requirements, you agree that we may disclose that you are a customer of the Enterprise Services and may use your name(s) and logo(s) in: (a) BranchUp’s digital, online, and printed marketing materials (including on our websites); and (b) external-facing presentations, including to individual clients and prospects and at trade shows, conferences, and similar events.
10.4 Force Majeure. Neither party will be liable for any failure to perform its obligations under this Agreement if that failure results from any cause beyond such party’s reasonable control, including: the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lockouts or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
10.5 Amendment. We may change any part of this Agreement (including any terms or documents incorporated by reference in this Agreement) at any time by posting the revised terms on the BranchUp website. It is important for you to review this Agreement before using our Enterprise Services and from time to time, though we will notify you of any changes that, in our sole discretion, materially impact this Agreement. The updated Agreement will be effective as of the time of posting, or on such later date as may be specified in the updated Agreement, and your continued use of the Enterprise Services after any such changes are effective will constitute your consent to such changes.
10.6 Severability. If a court finds part of this Agreement to be invalid, the rest of the Agreement will continue to apply with the minimum changes required to remove the invalid part.
10.7 Notices to You. BranchUp may give notice to you by placing a banner notice on the BranchUp platform or BranchUp’s website. We may also contact you or your Authorized Users through your BranchUp account or contact information you provide, such as email or telephone or through your account on one or more Social Networks. If you fail to maintain accurate account information, such as contact information, you may not receive critical information about our Enterprise Services or this Agreement.
10.8 Notices to BranchUp. For any notice to BranchUp that you give under or regarding this Agreement, you must notify BranchUp by email with a duplicate copy sent via registered mail to the following address: BranchUp Technologies Inc. Inc., 638 Millbank, Vancouver, British Columbia, V5Z 4B5; Attention: Legal Department.
10.9 Waivers. The rights of each Party may be waived only in writing. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
10.10 Remedies. Unless otherwise stated, each party’s remedies under this Agreement are not exclusive of any other remedies under this Agreement, at law or otherwise.
10.11 Governing Law and Dispute Resolution.
(a) The laws of the Province of British Columbia and Canadian law applicable in British Columbia will govern any dispute, cause of action or claim arising out of this Agreement or your use of our Enterprise Services, including against any BranchUp Party (“Dispute”), without giving effect to conflict-of-law principles.
(b) If you breach this Agreement or violate our rights or another person’s rights, in addition to any other remedy, we may ask a court for an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions of this Agreement, and you will reimburse us for our reasonable legal fees associated therewith.
(c) If you have any kind of Dispute with us, the exclusive means of resolving it will be by confidential, binding arbitration before a single arbitrator chosen by you and BranchUp. You will give notice of your Dispute to us in writing. If we do not decide together on an arbitrator within fifteen (15) days after we receive that notice, we both agree to ask the British Columbia International Commercial Arbitration Centre (BCICAC) to appoint one for us. The arbitration will take place in Vancouver, British Columbia, under the Arbitration Act (British Columbia), and will follow the Domestic Commercial Arbitration Rules of the BCICAC. The arbitrator will have the right to decide how the costs should be divided between us. The arbitrator will have the right to accept whatever kind of evidence they think is appropriate and will have the right to make whatever award they consider fair and equitable, based on legal and equitable principles, including giving an order such as an injunction (to stop one of us from doing something) or an order that you or we pay damages to the other. The arbitrator’s award can be entered into the registry of the British Columbia Supreme Court in Vancouver, British Columbia, and enforced in the same way as a court order if the court in the enforcing jurisdiction allows.
(d) Any Dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. BranchUp and you each waive any right to a trial by jury.
10.12 Export Compliance. You will not use or access our Enterprise Services if you are located in any jurisdiction in which the provision of our Enterprise Services is prohibited under Canadian, U.S. or other applicable laws (a “Prohibited Jurisdiction”) and you will not provide access to our Enterprise Services to any government, entity or individual located in any Prohibited Jurisdiction. You confirm that you are not named on any Canadian or U.S. government list of persons or entities prohibited from transaction with any Canadian or U.S. person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) you will not allow Authorized Users to access or use our Enterprise Services in violation of any Canadian, U.S. or other export embargoes, prohibitions or restrictions; and (d) you will comply with all applicable laws regarding the transmission of data exported from the country in which you (or your Authorized Users) are located to Canada and the United States.
10.13 Entire Agreement. This Agreement, including the other documents referred to as applicable to the Enterprise Services in this Agreement, is the entire agreement between you and BranchUp for your use of our Enterprise Services. Any prior understandings, statements or and agreements (oral or written) do not apply, including additional terms that you may present (such as terms in a unilateral notice from you to us or printed on a purchase order or any other document generated by you). This Agreement is binding on the parties and their permitted successors and assigns.
10.14 Langauge. The parties confirm that this Terms of Service, as well as any other related documents, including notices, schedules and authorizations, have been and shall be written in the English language only.
Les signataires confirment leur volonté que la présente convention, de même que tous les documents s’y rattachant, y compris tout avis, annexe et autorisation, soient rédigés en anglais seulement.