These GTC govern Customer’s rights and obligations with respect to the use of the Platform and the content displayed on the Platform (the Content), including without limitation application program interfaces and related materials (the APIs) and such content generated through Customer’s use of thereof (the Services).
These GTC do not govern any services Brandfetch may provide with respect to the Services under one or more separate agreements, such as support and/or consulting services. If, within the frame of such services, Brandfetch provides or helps Customer to generate any content usable in connection with the Platform, subject to express agreement to the contrary, such content shall, however, automatically become part of the Services governed hereunder.
By subscribing for the use of the Platform, Customer expressly agrees to be bound by the terms hereof. For the avoidance of doubt, if Customer is a legal entity, any subscription for the use of the Platform and/or use of the Services by any of its employees, agents or representatives, on behalf of Customer, is deemed as acceptance of the terms of these GTC by Customer. If you are subscribing for the use of the Platform or using any Services on behalf of a legal entity, you represent and warrant that you are duly authorized to do so.
Subject to Customer’s compliance with all terms and conditions of these GTC, in particular, subject to its payment of the applicable Fees in accordance with Section 10, Brandfetch, grants to Customer a revocable, non-exclusive and non-transferable right to access and use the Services strictly in accordance with any documentation or instructions provided by Brandfetch, on its own behalf and for its own benefit.
Customer shall use the Services through its own employees, agents and/or duly authorised representatives only and for its own business purposes and shall take appropriate steps to ensure compliance with these GTC by such users. Customer is expressly prohibited from using the Services on behalf or for the benefit of any third-parties, or to sublicense the Services to any third parties, without Brandfetch’s express prior written consent.
The Services are provided as a SaaS offering (Software as a Service). Brandfetch shall only grant to Customer a right to access and use the Services and shall not deliver any copy of the Content or APIs.
If so requested by Brandfetch, Customer shall provide Brandfetch with the name of its designated employees, agents or authorised representatives who shall be authorised to access and use the Services on behalf of Customer (the Authorised Users).
If Brandfetch issues user credentials on a named user basis, such user credentials shall be used exclusively by the individuals for which they have been issued, on behalf and for the benefit of Customer. If user credentials are issued to Customer without specifying the individual users, such user credentials may be used by any Authorised User, strictly on behalf and for the benefit of Customer.
The Customer shall be fully responsible for the confidentiality of any user credentials issued by Brandfetch and immediately inform the Customer of any loss or unauthorized disclosure of such user credentials, which shall then be deactivated and replaced by Brandfetch. Brandfetch may charge an appropriate fee for the replacement of any user credentials. The Customer shall further immediately notify Brandfetch if any named user for whom Brandfetch has issued user credentials quits the Customer’s organization, if and as applicable.
Customer shall maintain an up-to-date list of its Authorised Users, which shall promptly be made available to Brandfetch upon request.
Brandfetch shall use reasonable endeavors to maintain the availability of the Services. Brandfetch however does not guarantee their availability. A service level agreement (SLA) can be negotiated on a case by case basis.
As part of the provision of the Services, Brandfetch shall seek to identify and attempt to resolve problems which may negatively affect the proper functioning and availability of the Services (the Maintenance Services). Such Maintenance Services comprise repairs (rectification of faults and errors to restore functionality). Further development, adaptation or improvement of the Services (evolutive maintenance), as well as Support Services (as per Section 4.4), do not form part of the Maintenance Services.
Brandfetch may from time to time and at its sole discretion release updates, upgrades, and/or new versions of the Services, which shall be installed by Customer. Customer is responsible for installing and using the last versions of the Services in accordance with Brandfetch’s prescriptions. Brandfetch disclaims any liability for any defects, errors, or malfunctions of outdated or obsolete versions of the Services or any damages related to the use thereof.
Brandfetch may agree to provide technical support services to Customer for the Services (the Support Services), customization and/or development services for the Services, as well as other services subject to the Parties entering into a separate specific agreement (which shall not be governed by these GTCs) pertaining to such services and subject to the payment of the corresponding fees by Customer.
Customer shall pay the Fees as indicated in an order form, subscription form or by any other appropriate means (e.g. pricing schedules) (the Fees), in accordance with the payment terms set forth in Section 10.
Customer shall – and shall cause its Authorised Users to – at all times comply with all laws and regulations applicable to the use of the Services, as well as the conditions and limitation of any license or other right granted, as set out in the Agreement or as otherwise specified in writing by Brandfetch. In particular, Customer or the Authorised Users shall not, without the prior consent of Brandfetch, and either during or after the Term: (i) abuse the Services for any illegal purposes (ii) republish or redistribute any Content or material from the Services; (iii) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the APIs or of their infrastructure; (iv) make any alteration to the Services, or insert any malicious software into the APIs, the Content or their infrastructure; (v) access the Services' code, attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services or their infrastructure (vi) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or any part of their infrastructure available to any third party.
The Services may contain tools allowing Brandfetch to verify Customer’s compliance with these GTC and Brandfetch shall have the right to temporarily or permanently suspend access to the Services and/or deactivate any user credentials issued for the use thereof in case of none compliance with these GTC.
Customer shall provide Brandfetch with the document, information and data required in any order form or subscription form, or as otherwise reasonably required by Brandfetch (Customer Materials).
As between the Parties, Customer Materials is and shall remain the sole and exclusive property of Customer. Nothing herein shall be construed or interpreted as a transfer of ownership in any Customer Materials to Brandfetch.
Customer grants to Brandfetch a global, royalty-free, irrevocable, non-exclusive license to use the Customer Materials for the sole and exclusive purpose of providing the Services and/or other services, including a license to collect, process, store, generate, modify, and transfer the Customer Materials to third parties only to the extent necessary to provide the Services and/or other related services, as well as to train algorithms using Customer Materials, only to the extent necessary to provide or improve the Services.
Customer warrants that (i) it has valid grounds and, if required, it has obtained all authorisations and consents for the processing of any Customer Materials within the frame of these GTC and (ii) Customer Materials do not infringe on any law or regulation, these GTC, or any third party rights.
Upon termination of the agreement concluded under these GTC, Brandfetch shall, within a reasonable time following a written request by Customer, provide Customer with a final extract of the Customer Materials and permanently delete any copies of such Customer Materials still under its control. In any case, Brandfetch shall be allowed to permanently delete Customer Materials 60 days after termination or non-renewal of the agreement.
As between Brandfetch and Customer, Brandfetch shall remain the sole owner of all rights, title and interest, registered or not, whether arising from Swiss or any other national or international legislation, in copyright, databases, trademark, domain names, designs and patents of invention, know-how, confidentiality and/or business secrets, and all other intellectual property or similar proprietary rights of whatever nature (Intellectual Property Rights) in and to the Services, the APIs, the Platform and other services provided in connection therewith, except only for Customer Materials and Third-Party Content and Third Party Materials. Nothing in these GTC shall operate any assignment or transfer of any Intellectual Property Rights to Customer.
Customer expressly acknowledges that any infringement of Brandfetch’s intellectual property rights will cause irreparable harm to Brandfetch, for which monetary damages alone would be inadequate, and that Brandfetch may thus seek injunctive relief or any other remedy available at law in any jurisdiction, in case of such infringement.
Should Customer become aware of any infringement or imminent risk of any infringement of any intellectual property rights pertaining to the Services, the Customer shall immediately inform Brandfetch and provide all useful information on such infringement or risk of infringement. Brandfetch shall have the exclusive power to decide on any action to be taken with respect to such infringement or risk of infringement. Customer shall, at its own costs, provide Brandfetch with all reasonable assistance required by Brandfetch to protect its intellectual property rights, in accordance with its instructions.
The Services may contain Content and/or software components incorporated into the Services or provided therewith, developed, distributed and/or licensed by third parties (Third-Party Content). Such Third-Party Content shall be licensed, and Customer shall use such Third-Party Content under, and strictly in accordance with the applicable terms and conditions by the respective third-party. Brandfetch shall use its best efforts to identify any Third-Party Content in the documentation of the Services.
Nothing in these GTC shall restrict, limit or otherwise affect any rights or obligations that Customer may have, or conditions to which Customer may be subject, under any applicable open source licenses to any open source software which may be incorporated in and/or provided together with the Services.
By using the Services, Customer may instruct Brandfetch to access, route and transmit to Customer resources made available by third parties (Third Party Materials). Customer expressly acknowledges that Brandfetch does not endorse or control Third Party Materials. Brandfetch disclaims any liability for any Third Party Materials, including their accuracy, integrity, quality, legality, usefulness or safety, or any intellectual property rights therein. The availability of any Third Party Materials does not imply Brandfetch’s endorsement or affiliation with any provider of such Third Party Materials and does not create any legal relationship between such provider and Customer.
Customer shall bear sole responsibility for the use of Third Party Materials within the frame of the Services. Customer shall comply with all rights, obligations, conditions, policies, laws and regulations pertaining to such Third Party Materials.
Notwithstanding Section 16.4, Brandfetch reserves the right to immediately suspend or cease the provision of the Services in case of any breach by Customer of Customer’s obligations under Section 9.2.
Subscription Fees shall be due and payable in advance on a monthly or yearly basis, and non-refundable in case of termination. Additional Fees as incurred through Customer’s use of the Services are invoiced in arrears, on a monthly basis.
Fees and rates indicated by Brandfetch shall be exclusive of all taxes (in particular, VAT) if and as applicable. The applicable currency is American dollars, unless otherwise agreed in writing.
Payment of the Fees shall be made by wire transfer to Brandfetch’s bank account, as indicated from time to time to Customer.
The continued use of the Services by Customer shall be subject to the timely payment of all Fees. Brandfetch may temporarily suspend any License and/or any user credentials issued to the Customer, if applicable, if Customer is in default for payment of any Fees due.
Changes of the Fees and/or the subscription models, if applicable, shall become effective as of the next Renewal Term subject to a prior written notice of 2 months by Brandfetch.
If the provision of the Services implies the processing by Brandfetch of (i) any personal data forwarded by Customer or of Customer's Authorised Users (Customer Personal Data), in particular as part of Customer Materials, or (ii) personal data relating to Usage Data (Usage Personal Data), Brandfetch and Customer shall fully comply with their respective obligations under applicable data protection laws and regulations.
In such cases, Brandfetch shall process (i) Customer Personal Data, as data processor, exclusively for the purpose agreed in these GTC and only to the extent necessary to fulfil the obligations hereunder, in accordance with Customer’s instructions, which shall act as data controller and (ii) Usage Personal Data as sole data controller thereof.
Customer shall ensure, with respect to any Customer Personal Data processed by Brandfetch within the frame of the Services, if any, that such Customer Personal Data has been collected and transferred to Brandfetch in strict compliance with the applicable data protection or data privacy laws and regulations. In particular, Customer shall
a. have, and maintain at all times, valid grounds for the processing of such personal data;
b. have adopted and implemented appropriate technical and organisational measures to protect such personal data; and
c. have complied and comply with all registration and/or notification requirements, if and as required under applicable data protection or data privacy laws and regulations, prior to granting Brandfetch access to such Customer Personal Data within the frame of the Services.
Customer shall bear sole responsibility for the processing of Customer Personal Data, if any, within the frame of the Services. Customer acknowledges and accepts that Brandfetch shall deem any processing of any Customer Personal Data within the frame of the Services, as permitted under these GTC, as well as any instructions by Customer with respect to such processing activities as compliant with applicable data protection or data privacy laws and regulations.
By accepting these GTC, Customer expressly acknowledges and agrees that Customer Personal Data or Usage Personal Data may be transferred to and processed on servers located outside of its jurisdiction, including in jurisdictions which may not have data protection and privacy laws and regulations equivalent to those in the Customer’s jurisdiction.
Brandfetch may forward to Customer any request, investigation or other action by any supervisory authority and/or any third-parties (including data subjects), directed at Brandfetch with respect to the processing of any Customer Personal Data. If Brandfetch is required to undertake any compliance action itself, e.g. responding to a request by any supervisory authority or third-party and/or cooperating in investigations, and/or to provide assistance to Customer, Customer shall fully indemnify Brandfetch for its effort and costs, including reasonable attorney’s fees, incurred in such context. Requests, investigations, or actions relating to Usage Personal Data shall be addressed by Brandfetch only.
The Parties may agree in a separate agreement or contract or any other document to specific provisions regarding the processing of Customer Personal Data as part of the Services, in which event such provisions shall have precedence over and supersede this Section 11.7.
Brandfetch may refer to Customer as a customer of Brandfetch for the Services and Customer grants to Brandfetch a limited license to use its name, logos and trademarks for the sole purpose of referring to it within the frame of its marketing activities.
The Services are provided AS IS and AS AVAILABLE. To the maximum extent permitted by applicable law, Brandfetch disclaims all warranties with respect to the Services, whether express, implied or statutory, including any warranties of merchantability, fitness for a particular purpose, quiet enjoyment and non-infringement of third-party rights.
In particular, Brandfetch does neither represent nor warrant that the Services will meet Customer’s requirements, that the operation of the Platform will be uninterrupted or error-free, that the Content will be error-free, that any errors in the Services will be corrected, that it will ensure continued compatibility of the Platform and/or APIs and/or Services with any third-party products, even if they are compatible with such third-party products upon the granting of the right of use or at any given moment before or thereafter, that the Services will always be available and remain available unchanged or that certain subscription models for the Services available at any given moment, will remain available for renewal at the end of the applicable subscription period. The use of the Services is entirely at the Customer’s own risk, and Brandfetch expressly disclaims any warranties regarding the Customer’s use thereof and/or any decisions taken by the Customer based on the insights gained from its use of the Services.
Brandfetch’s liability under these GTC, whether in contract, tort or any other theory of liability, shall be excluded to the maximum extent permitted under applicable law.
In particular, without prejudice to the generality of the foregoing, to the extent permitted under applicable law, Brandfetch disclaims any liability for simple negligence as well as for any damages or losses, whether foreseen or foreseeable, or whether Brandfetch has been advised of the risk thereof, related to the loss of use, interruption of business, loss of actual or anticipated profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of data, or any other indirect, special, incidental, exemplary, or consequential damages or losses of any kind, regardless of the form of action, whether in contract, tort, strict liability or otherwise.
In no event, Brandfetch’s total liability during any period of 12 months shall exceed the amount of the Fees actually paid by Customer during the 12 months preceding the events giving rise to Customer’s claims.
The exclusions and limitations under this Section 13.2 shall extend to Brandfetch’s directors, officers, employees, agents, representatives and auxiliaries.
Customer shall defend, hold harmless from, and indemnify Brandfetch, its directors, officers, employees and auxiliaries, from and against all liability, loss, cost, damage or expense, including reasonable attorney's fees, resulting from (i) Customer’s use of the Services other than as permitted under these GTC and strictly in accordance with any documentation provided for the Services, or (ii) Brandfetch’s use of any Customer Material as permitted hereunder.
In case of any claims or proceedings made against Brandfetch, its directors, officers, employees or auxiliaries in relation to Customer’s use of the Services, Brandfetch shall (i) inform Customer without undue delay; and (ii) allow Customer to assist Brandfetch in the defence and settlement of such claims or proceedings with a counsel of its choosing and at its own expense, if and as permitted under applicable procedural rules.
These GTC shall enter into force upon any of the following events, whichever occurs first: Customer’s subscription for the use of the Platform or first use of the Services.
The GTC shall remain in effect for the term indicated on the website where Customer has subscribed for use of the Platform or by any other appropriate means by Brandfetch, as applicable, subject to non-renewal or termination in accordance with this Section 16 (the Initial Term).
Subscriptions shall be automatically renewed upon expiry of the Initial Term, or then current renewed term (each a Renewed Term, and together with the Initial Term, the Term), for consecutive Renewed Term of the same duration as the Initial Term, subject to prior written notice of non-renewal (including by e-mail) by either Party with a 1 month prior notice.
Brandfetch may terminate the agreement formed under these GTC with immediate effect, in case of any material breach by Customer, provided that, if Customer’s breach may be cured, at Brandfetch’s sole judgement, Brandfetch shall first give the Customer 10 days’ prior notice written notice (including by e-mail) to cure such breach at Brandfetch’s entire satisfaction. Brandfetch may further terminate the agreement formed under these GTC, in case of any infringement of third party rights or risk of infringement of such rights through Customer’s use of the Services. Prepaid subscription Fees shall not be refunded in case of termination.
Upon non-renewal or termination of the Agreement, an in addition to the consequences described elsewhere in the GTC:
a. Brandfetch shall stop providing and Customer shall stop using the Services, the Platform and the APIs;
b. All rights to use and access granted hereunder (inter alia under Section 2.1) shall cease immediately. All access to the Services and credentials shall be deactivated and suppressed;
c. Customer shall permanently delete any part of the Services stored or installed on its IT systems, if any;
d. All Fees already paid by Customer shall remain acquired to Brandfetch and are not reimbursable to Customer. Customer shall immediately pay all outstanding amounts due to Brandfetch.
The Parties acknowledge and agree that they shall be considered as independent contractors with no authority to contract for the other or in any way to bind or to commit the other or in a way to bind or to commit the other to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of the other. Under no circumstances shall either Party, or any of its staff, if any, hold itself out as or be considered an agent employee, joint venture, or partner of the other. Neither Party shall not pay any contributions to social security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship.
Brandfetch may use subcontractors for the providing of the Services and related services, including for the hosting and maintenance of the Services or the infrastructure on which the Services are hosted. Brandfetch’s use of subcontractors shall not relieve Brandfetch of any of its duties or obligations hereunder, which shall be imposed on subcontractors. Customer acknowledges that it shall have no direct claim whatsoever against Brandfetch's subcontractors in connection with their actions or omission pertaining to the providing of the Services.
Neither Party shall be liable for any delay or failure to perform its obligations hereunder due to causes beyond its reasonable control, such as natural catastrophes, war, strikes, black-outs, Internet failure, or similar events. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed Party. However, the delayed Party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed Party must notify the other arty promptly upon the occurrence of any such event, or performance by the delayed Party will not be considered excused pursuant to this Section 17.3 and inform the other Party of its plans to resume performance.
Brandfetch may amend these GTC at any time by written notice (including by e-mail) to the Customer. Any amendment shall become effective immediately or as otherwise indicated by Brandfetch to Customer in its notice to Customer. If Customer does not accept any amendment notified by Brandfetch, its sole remedy shall be to terminate these GTC in accordance with Section 15.3.
Subject to indications contained in the online subscription form and Brandfetch’s indications on the Fees, these GTC and the indications contain all of the terms and conditions agreed upon by the Parties relating to its subject matter and supersedes all prior agreements, negotiations, correspondence, undertakings and communications of the Parties, whether oral or written, with respect to such subject matter.
In the event of a conflict or contradiction between the terms of these GTC and any indications contained in the online subscription form, the terms of these GTC shall take precedence, subject to express derogating provisions acknowledged and approved by Brandfetch in writing.
If any provision of these GTC is held to be invalid or unenforceable for any reason, the Parties hereby agree to replace such provision with a valid and fully enforceable provision, reflecting the original intent of the Parties to the fullest extent possible. In any event, all other provisions of these GTC shall remain valid and enforceable to the fullest extent possible.
The failure of either Party to enforce any of the provision of these GTC or any rights thereunder shall in no way be considered as a waiver of such provisions or rights.
Neither these GTC nor any of Customer's rights or obligations hereunder, in particular the Services, may be assigned, transferred or sublicensed by Customer to any third party, without Brandfetch’s prior written consent. Any such purported assignment, transfer or sublicense shall be null and void. Brandfetch may assign and transfer these GTC to any third party, in which case Brandfetch shall provide the Customer with written notice (including by e-mail) of such assignment or transfer. If the Customer does not agree to such assignment or transfer, its sole remedy shall be to terminate these GTC in accordance with Section 16.3.
These GTC shall be binding and inure solely to the benefit of the Parties (and their respective lawful successors and assigns). Nothing in these GTC is intended to or shall confer upon any third party any rights, benefits or remedies of any nature whatsoever under or by reason of these GTC.
Subject to mandatory applicable law, these GTC shall be governed by and construed in accordance with Swiss substantive law, at the exclusion of its conflict of laws provisions.
Subject to mandatory applicable law, any dispute or controversy arising out of or in relation to these GTC and/or the Customer’s use of the Services shall be subject to the exclusive jurisdiction of the competent courts at Lausanne, Switzerland. Notwithstanding the preceding, nothing in these GTC shall prevent Brandfetch from seeking injunctive relieve or any other remedy available at law in any jurisdiction in case of any infringement of its intellectual property rights.