Terms of service

Terms of Service

Version 1.0 – December 2018

 

Welcome to myBrand.

This is a binding contract. Please read it carefully before using myBrand.

These Terms of Service (the “Terms”) are an important contract between us and you:

This contract is between myBrand and your organization. You represent that you have the authority to bind your organization to this agreement.

myBrand has several policies (the “Policies”) that form part of these Terms:

  1. Acceptable Use Policy
  2. Billing Policy
  3. Privacy Policy
  4. Security Policy
  5. Support Policy
  6. Trademark Policy

The “Agreement” refers to these Terms and the Policies together.

The general idea of this Agreement is that we grant you a license to use the Services, and in return you pay us and agree to abide by our terms and policies. Your failure to abide by your obligations under these policies constitutes grounds for suspension or termination of your account and revocation of your access to the Services.

In this Agreement:

“myBrand,” “we,” and “us” means Restyle Groep nederland b.v., trading as myBrand.
The “Services” means the myBrand services, including the myBrand.center and any other platforms, APIs, interfaces, related web sites, networks, embeddable widgets, downloadable software, and other services we provide.
Section 2 contains more defined terms.

Summary
You acknowledge and agree that, as provided in greater detail in this Agreement:

  • The Services are licensed, not sold to you, and that you may use the Services only as set forth in this Agreement;
  • The Services are provided “as is” without warranties of any kind, and myBrand’s liability to you is limited;
  • You are solely responsible for protecting the privacy and legal rights of your End Users, except as provided for in a Business Associate Agreement or Data Use Agreement between you and myBrand;
  • You are solely responsible for exporting Your Content and materials from the Services prior to closing your myBrand account; and
  • This Agreement takes effect when you click an “I Accept” button or checkbox presented with these terms, sign a contract that incorporates these terms by reference, or, if earlier, when you use any of the Services (the “Effective Date”).

We provide certain myBrand Services pursuant to a Service Level Agreement and a HIPAA Breach Indemnification Agreement.

 

1. Eligibility

You represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound by this Agreement on behalf of that organization. myBrand may, in its sole discretion, refuse to offer the Services to any person or entity, and may change its eligibility criteria at any time.

 

2. Your Account and Use of the Services

To access the Services, you must create an myBrand user account. You may also need to create an myBrand organization account, if one does not exist already.

When you register for the accounts, you may be required to provide us with some information about yourself, such as your phone number or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate at all times. You are responsible for all activities that occur under your accounts, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents). You may create additional user accounts for users within your organization.

Each myBrand user account is protected by credentials. You are responsible for maintaining the security of your credentials. myBrand and our affiliates are not responsible for unauthorized access to your account, except to the extent caused by our breach of this Agreement.

If you do not abide by your obligations, or if you violate our Acceptable Use Policy, we may determine your account to be not in good standing and may take Remedial Action pursuant to Section 5. Good standing is determined at myBrand’s sole discretion.

MYBRAND RESERVES THE RIGHT TO DISABLE ANY USER’S ACCESS TO ANY PART OF THE SERVICE, AND TO TERMINATE ANY USER’S ACCOUNT.

You may terminate your account and this Agreement at any time in accordance with Section 11.

A. Your obligations. Your obligations include, but are not limited to, the following:

  1. Your use of the Services must comply with all applicable laws, regulations, and ordinances, including any laws regarding the export of data or software.
  2. You will provide us with true and accurate information and responses in connection with your use of the Services.
  3. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen.
  4. You will not attempt to gain access to myBrand’s internal administrative tools.
  5. You will not attempt to disrupt the Services.
  6. You will abide by the Acceptable Use Policy.
  7. You will abide by the restrictions in our Support Policy and Security Policy on how the Services may be implemented.
  8. You will remit payment timely for the Services, as specified in the Billing Policy and any purchase order you may execute.
  9. If you are using the Services to process GDPR personal data, you must have a valid, signed Privacy Shield Addendum with myBrand and have applied the required security configurations and controls as specified in that agreement.

B. Unauthorized uses. You will not violate, and will not allow third parties under your control to violate, our Acceptable Use Policy or other policies.

 

3. Privacy

A. Your privacy. Please read our Privacy Policy.

B. Your users’ privacy. You are responsible for protecting the privacy and legal rights of your End Users. Your obligations include but are not limited to:

  1. Properly configuring the myBrand Services, including your myBrand environment, to protect your users’ information;
  2. Configuring and enforcing user access policies and permissions for the myBrand Services, including your myBrand environment; and
  3. Providing legally adequate privacy notices for your users, and informing them that their information may be available to myBrand and/or our affiliates under certain circumstances, pursuant to our Privacy Policy.

We provide support and training to help you with these responsibilities. Please see our support resources, our Support Policy.

 

4. Fees and Charges

A. Payments and pricing. You incur fees and charges based on your use of the Services. We bill as indicated in the myBrand Billing Policy or your purchase order, as applicable. We may invoice you more frequently if we determine that your account is at risk of non-payment. Any outstanding balance becomes immediately due and payable upon termination of this Agreement for any reason.

All amounts payable are denominated in Euros, and you agree to pay all such amounts in Euros.

We may change our Billing Policy. In the event we do so, we will give you 30 days notice before the beginning of the billing cycle during which the revised policy will be applied.

Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all reasonable expenses and attorneys fees we incur collecting late payments. We reserve the right to discontinue the provision of the Services to you for any late payments.

Fees are based on our measurements of your use of the Services. Our determination is final. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). To the fullest extent permitted by law, refunds (if any) are at our discretion and only in the form of credit for the Services. Nothing in this Agreement obligates myBrand to extend credit to any party.

B. Taxes. You are responsible for paying all taxes and government charges and will pay us for the Services without any reduction. In the event that myBrand is obligated to collect or pay taxes, those taxes will be invoiced to you, unless you provide us with a timely and valid tax exemption certificate issued by the appropriate authority for each jurisdiction in which you claim exempt status.

If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

 

5. Suspension, Removal, and Remedial Action

Under some circumstances, you are obligated to suspend or remove a myBrand environment or other service from the myBrand.center and take remedial measures, such as if your environment is compromised and is being used to violate our Acceptable Use Policy.

In addition to your obligations, we reserve the right to suspend your account, suspend your access or your End Users’ access to the Services, and/or suspend or remove an myBrand environment. Our right to take Remedial Action is in addition to our right to terminate this Agreement pursuant to Section 11.

A. Your obligations. If you become aware that any End User’s use of an environment or data violates the Acceptable Use Policy, you will immediately suspend access to that End User, and remove the applicable data, whichever may be applicable to remedy the violation. If you fail to remedy the violation on your own, we will make a specific request that you do so. If you do not remedy the violation within the time period specified in our request (in no case later than 24 hours), we may take Remedial Action.

We reserve the right to take Remedial Action if you are in breach of this Agreement, including if you are delinquent on your payment obligations by more than 15 days.

B. Our obligations. We will always try to resolve Acceptable Use issues within a mutually acceptable timeframe. We reserve the right to take unilateral Remedial Action at any time, however, to enforce our policies and ensure the safety and security of our customers and their users. If we take Remedial Action without prior notice, we will provide the reason to you as soon as is practically possible.

C. Effect of Remedial Action. If we take Remedial Action:

  • You remain responsible for all fees and charges you have incurred through the date of the Remedial Action;
  • You remain responsible for any applicable fees and charges for any Services to which you continue to have access;
  • You remain responsible for applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension; and
  • You will not be entitled to any credits for any period of suspension.

 

6. Intellectual Property

A. Content. As between you and myBrand, you own Your Content. You are solely responsible for the development, operation, maintenance, and use of Your Content. For example, you are solely responsible for:

  1. Compliance of Content with the Acceptable Use Policy, other Policies, and any applicable laws or regulations;
  2. Any claims relating to Your Content; and
  3. Properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that Your Content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.

You represent and warrant to us that:

  1. You or your licensors own all right, title, and interest in and to Your Content;
  2. You have all rights in Your Content necessary to grant the rights contemplated by this Agreement;
  3. None of Your Content End Users’ use of Your Content, or the Services, will violate the Acceptable Use Policy; and
  4. You will set up a process to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act.

myBrand responds to notices of alleged copyright infringement and terminates accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. Please see Section 7 of this Agreement. We reserve the right to take Remedial Action upon receipt of a valid DMCA notice.

B. Proprietary rights. In general, except as expressly set forth below in Sections 8 and 9, this Agreement does not grant either party any rights, implied or otherwise, to the other’s Content or any of the other’s intellectual property. As between the parties, you own all intellectual property rights in your customer data, and we own all intellectual property rights in the Services.

Notwithstanding that general principle:

  1. You consent to our use of Your Content to provide the Services to you and any End Users;
  2. We may disclose Your Content to provide the Services to you or any End Users;
  3. We may disclose Your Content to comply with any request of a governmental or regulatory body (including subpoenas or court orders); and
  4. If you provide any suggestions to us, we will own all right, title, and interest in and to your suggestions, even if you have designated the suggestions as confidential. We and our affiliates will be entitled to use your suggestions without restriction. You hereby irrevocably assign us all right, title, and interest in and to your suggestions.

 

7. Digital Millennium Copyright Act

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the myBrand.center, please notify our copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For your complaint to be valid under the DMCA, you must provide the following information in writing:

  1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
  2. Identification of the copyrighted work that you claim has been infringed;
  3. Identification of the material that is claimed to be infringing and where it is located on the Service;
  4. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, e-mail address;
  5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
  6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

Submit the above information to:
myBrand
Stadionlaan 50a
7606 JZ Almelo
The Netherlands

myBrand will promptly terminate without notice the accounts of users that are determined by myBrand to be “repeat infringers.“ A repeat infringer is a user who has been notified of infringing activity or has had Content removed from the Service at least twice.

This procedure is exclusively for notifying myBrand that your copyrighted material has been infringed. This policy is intended to protect and comply with myBrand’s rights and obligations under the DMCA, including 17 U.S.C. § 512(c), but does not constitute legal advice. You should contact an attorney for counsel regarding your specific legal rights and obligations.

 

8. Your Licenses from myBrand

A. License to access and use the Services. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Services solely in accordance with this Agreement. This license is valid only during the term of this Agreement, and is revoked upon termination. This license is subject to the following restrictions:

  1. Neither you nor any End User may use the Services in any manner or for any purpose other than as expressly permitted by this Agreement.
  2. Neither you nor any End User may, or may attempt to (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services (except to the extent software included in the Services are provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services, (c) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, (d) resell or sublicense the Services, or (e) circumvent any security mechanisms used by myBrand, the Services, or any Applications running on the Services.
  3. All licenses granted to you in this Agreement are conditional on your continued compliance with this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement.
  4. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Services you have used.

B. License to re-use your myBrand documentation. Notwithstanding the above, to the extent we have intellectual property rights in your myBrand documentation, such as training, audit logs, other compliance deliverables, and other myBrand work products, we grant you a perpetual license to use, make, adapt, and distribute copies to affiliates, directors, officers, employees, or contractors, or as needed to comply with any request of a governmental or regulatory body or a partner. This license is limited to use for your own internal business purposes. You may not resell such materials, or use them (or let them be used) to develop competing products or services. Any distribution you make to third parties must include these restrictions.

C. Our trademarks. myBrand hereby grants you a limited, non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to display the myBrand trademarks for the sole purpose of promoting or advertising that you use the myBrand Services. This licenses shall be exercised only in accordance with the current version of our Trademark Policy. You agree that all goodwill generated through your use of the myBrand trademarks shall inure to the benefit of myBrand.

 

9. Our Licenses from You

You hereby grant us a worldwide, non-sublicensable, non-transferable, non-exclusive, terminable, limited license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, host, store, transfer, modify for the purpose of formatting for display, and distribute any data (including Your Content) for the sole purpose of enabling us to provide you with the Services.

 

10. Modification of the Services

You acknowledge and agree that the form and nature of the Services which myBrand provides may change from time to time without prior notice, subject to the terms in section 5. Changes to the form and nature of the Services will be effective with respect to all versions of the Services; examples of changes to the form and nature of the Services include without limitation changes to the Billing Policy, security patches, added functionality, and other enhancements.

 

11. Termination

The license granted in this Agreement will remain in effect, unless terminated earlier as set forth in this Agreement. Sections 6 (Intellectual Property), 11 (this Section), 13 (Indemnification), 14 (Exclusion of Warranties), 15 (Limitations of Liability), 18 (Governing Law) and 19 (General Terms) shall continue to be effective after this Agreement is terminated.

Unless you have a purchase order or other contractual commitment to myBrand:

  • You may terminate this Agreement at any time by cancelling your account, and
  • We may, in our sole discretion for any or no reason, terminate this Agreement by cancelling your account or any portion of your access to the ServicesYOU ARE SOLELY RESPONSIBLE FOR EXPORTING YOUR CONTENT FROM THE SERVICES PRIOR TO CLOSING YOUR ACCOUNT. IF WE CANCEL YOUR ACCOUNT, WE WILL PROVIDE YOU A REASONABLE OPPORTUNITY TO RETRIEVE YOUR CONTENT, AS PERMITTED BY LAW.

 

You will not receive any refunds if you terminate this Agreement. If the Agreement is terminated, all of your rights under this Agreement immediately terminate and all fees and charges (including any applicable taxes) owed by you to us are due immediately, including fees and charges for in-process tasks completed after the date of termination.

 

12. Changes to these Terms

We reserve the right, at our discretion, to change these Terms, as well as the Policies, on a going-forward basis at any time.

If the changed Terms or Policies materially modify your rights or obligations, we may require you to provide consent by accepting the changed Terms or Policies, as applicable. If we require your acceptance of the changed Terms or Policies, changes are effective only after your acceptance.

In the event that a change to these Terms or Policies does not materially modify 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 Services, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. These changes are effective upon publication of the changed Terms or Policies.

If you do not accept the changed Terms or Policies, we may terminate your access to and use of the Services. If you are under contractual commitment to myBrand, we may choose not to renew your contract.

Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect between the parties at the time the dispute arose.

 

13. Indemnification

A. Our Obligations to You. Please see the HIPAA Breach Indemnification Agreement.

B. Your Obligations to Us. You agree that you will be responsible for your use of the Services, and if you harm someone or get in a dispute with someone else, we will not be involved. You agree to defend and indemnify myBrand and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the ”myBrand Entities“) from and against every third-party 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 Services; (b) your violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, 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. The assumption of such defense or control by us, however, shall not excuse any of your indemnity obligations.

 

14. EXCLUSION OF WARRANTIES

EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MYBRAND DOES NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. MYBRAND IS NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CONTENT AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICE. YOU ARE SOLELY RESPONSIBLE FOR SECURING AND BACKING UP YOUR CUSTOMER DATA, EXCEPT WHERE BACKUP OR SECURITY CONTROLS ARE EXPRESSLY PROVIDED AS FEATURES OF THE SERVICES. MYBRAND DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE ERROR-FREE, TIMELY, OR UNINTERRUPTED. MYBRAND DOES NOT WARRANT THAT THE SERVICES WILL BE SECURE, EXCEPT AS EXPRESSLY DOCUMENTED. THE SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES. YOU UNDERSTAND THAT YOU USE THE SERVICES AT YOUR OWN DISCRETION AND RISK.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE APTIBLE ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICES, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, 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 SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE 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.

 

15. LIMITATIONS OF LIABILITY

IN NO EVENT WILL THE MYBRAND 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 TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY APTIBLE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

YOU AGREE THAT THE AGGREGATE LIABILITY OF THE MYBRAND ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT PAID BY YOU TO APTIBLE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM.

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 THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT 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 THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 1.15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

The foregoing limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s intellectual property rights by the other party, or indemnification obligations.

 

16. Support

We will provide technical support to you pursuant to our Support Policy. Custom Service Level Agreements or support agreements may be available.

 

17. Security

As with any cloud service, you have ongoing security responsibilities to protect Your Content. You hereby agree to the terms of our Security Policy.

 

18. Governing Law

This Agreement is governed exclusively by Dutch law without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under this Agreement, then, unless another location is expressly specified in this Agreement, you and myBrand agree to resolve disputes by the Amsterdam District Court following proceedings in English under that Court’s Rules Procedure of the Chamber for International Commercial Matters (“Netherlands Commercial Court”). Application for provisional measures, including protective measures, available under Dutch law may be made to the Netherlands Commercial Court’s Preliminary Relief Judge in proceedings in English in accordance with the Rules of Procedure of the Netherlands Commercial Court.

 

19. General Terms

A. Notices. All notices to myBrand must be in writing and addressed to support@mybrand.center. Notice will be treated as given on receipt as verified by written automated receipt or by electronic log (as applicable).

You agree that myBrand may provide you with notices, including those regarding changes to this Agreement, by email, regular mail, or postings on the myBrand Services. By providing myBrand your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.

B. Assignment. You may not assign any part of this Agreement without our written consent. Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under this Agreement, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.

C. Force Majeure. myBrand shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

D. No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.

E. No Waiver. You agree that any delay or failure of myBrand to exercise or enforce any legal right or remedy which is contained in this Agreement (or which we have the benefit of under any applicable law), for any reason, does not constitute a formal waiver of our rights and that those rights or remedies will still be available to us.

F. Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

G. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless expressly stated.

H. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.

I. Amendments. Any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.

J. Entire Agreement. This Agreement supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are hereby incorporated by this reference. After the Effective Date, myBrand may provide you with an updated URL in place of any URL in this Agreement.

K. Interpretation of Conflicting Terms. If there is a conflict among the documents that make up this Agreement, the documents will control in the following order: this Agreement, and the terms located at any URL.

 

20. Definitions

“Acceptable Use Policy” means the policy currently available at https://www.mybrand.center/legal/acceptable-use, as it may be updated by us from time to time.

“Application” means an application running within the myBrand center

“Billing Policy” means the policy currently available at https://www.mybrand.center/legal/billing, as it may be updated by us from time to time.

“Content” means software, data, text, audio, video, images or other content.

“End User” means any individual or entity that directly or indirectly through another user:

  1. Accesses or uses Your Content; or
  2. Otherwise accesses or uses the Services under your account.

The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own myBrand account, rather than your account.

“Environment” means your organization’s private section within the myBrand center.

“GDPR Personal Data” means personally identifiable information as defined in Article 4 of the European Union’s General Data Protection Regulation.

“High Risk Activity” means any activity where the failure of a supporting computer system could lead to death, personal injury, or severe physical or environmental damage, such as the operation of nuclear facilities, aircraft navigation, or direct life support systems.

“myBrand Marks” or “Marks” mean any trademarks, service marks, service or trade names, logos, and other designations of myBrand and its affiliates that we may make available to you in connection with this Agreement.

“myBrand Site” means https://mybrand.center, http://mybrand.center, any subdomain owned or operated by myBrand, and any successor or related site designated by us.

“Privacy Policy” means the policy currently available at https://www.mybrand.center/legal/privacy, as it may be updated by us from time to time.

“Remedial Action” means our right under this Agreement to suspend your access or your End Users’ access to the Services, in the event that this Agreement is breached.

“Security Policy” means the policy currently available at https://www.mybrand.center/legal/security, as it may be updated by us from time to time.

“Shared Environment” means an environment shared between myBrand customers.

“Support Policy” means the policy currently available at https://www.mybrand.center/legal/support, as it may be updated by us from time to time.

“Trademark Policy” means the policy currently available at https://www.mybrand.center/legal/trademarks, as it may be updated by us from time to time.

“Your Content” means Content you or any End User (a) runs on the Services, (b) causes to interface with the Services, or (c) uploads to the Services under your account or otherwise transfers, processes, uses, or stores in connection with your account.