Please read this Developer Agreement ("Agreement") carefully before utilizing or accessing Brandfolder, Inc.'s ("Brandfolder") Brandfolder API, access tokens, app keys, HTML scripts, sample source code and other development materials and technology that Brandfolder makes available through its websites, including the Developer Portal (available at https://developers.brandfolder.com/docs/#getting-started) or in a public forum (e.g., GitHub) (collectively, "Developer Tools").
BY CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT OR BY ACCESSING OR USING THE DEVELOPER TOOLS, YOU (THE INDIVIDUAL OR ENTITY ON WHOSE BEHALF YOU ACCEPT, ACCESS, OR USE, COLLECTIVELY "DEVELOPER") AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE DEVELOPER TOOLS. ANY INDIVIDUAL AGREEING TO BE BOUND BY THIS AGREEMENT ON BEHALF OF AN ENTITY REPRESENTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS CONTAINED HEREIN.
DEVELOPER SHALL NOT ACCESS OR USE THE DEVELOPER TOOLS WITHOUT PRIOR WRITTEN CONSENT OF BRANDFOLDER IF DEVELOPER IS OR BECOMES A DIRECT COMPETITOR TO BRANDFOLDER OR ITS AFFILIATES.
IF DEVELOPER REQUIRES RIGHTS BEYOND THOSE CONTEMPLATED HEREIN, PLEASE CONTACT BRANDFOLDER TO LEARN ABOUT OUR OTHER PROGRAMS.
1. Developer Program. The program offered by Brandfolder to Developer under this Agreement provides access to certain Brandfolder Properties in order to create a Developer Application which may be utilized by End Users (the "Program"). Participation in the Program requires an account with Brandfolder for the Subscription Service or other applicable online Service. Developer agrees to provide accurate, up-to-date information as required by Brandfolder during the term of this Agreement.
2. Developer Application.
2.1 Right and License to Develop. Subject to the terms and conditions of this Agreement, Brandfolder hereby grants Developer a limited, non-exclusive, non-sublicensable right and license for the term of this Agreement (a) to use the Brandfolder Properties in connection with creating a Developer Application and (b) only after Brandfolder reviews and provides its written approval of the Developer Application, to make the Developer Application available to End Users. Developer may permit Developer's employees, contractors and representatives to exercise Developer's use right and license on Developer's behalf provided that Developer remains responsible and liable for such third parties' compliance with this Agreement.
2.2 Restrictions. Developer's access to and use of the Brandfolder Properties is subject to the applicable restrictions in its Subscription Agreement, Brandfolder's Acceptable Use Policy and Limits Policy (collectively, the "Policies", each as available at https://brandfolder.com/legal/), and any other agreement between the Parties, including any applicable addendums to this Agreement. Developer shall access and use the Brandfolder Properties in compliance with this Agreement and applicable laws and regulations, and shall promptly notify Brandfolder of any known unauthorized access or use.
2.3.1 End User Notification. Developer must provide clear and accurate information to End Users regarding the use of the Developer Application and any processing of End User Content, including personal data. At a minimum, such notice must include:
- a statement that use of the Developer Application requires End Users to maintain access to the applicable Service, which must be purchased separately from Brandfolder, and the Developer Application can only be used in conjunction with such Service;
- a product description of the Developer Application;
- any disclosures, including a link to Developer's privacy notice, required for Developer to obtain End User consent or authorization to process End User Content;
- a disclaimer that Brandfolder has no obligation to provide maintenance or support for the Developer Application to Developer or End Users or to fix any errors or defects in the Developer Application, and that Developer is solely responsible for the quality and support of the Developer Application;
- a statement providing the Brandfolder Abuse email alias, email@example.com, for End Users to report any suspected abuse; and
- an affirmative statement that Brandfolder Properties are and remain the property of Brandfolder.
2.3.2 Prohibited actions. The Developer Application may not and may not attempt to do any of the following:
- violate, or encourage or facilitate the violation of, this Agreement, the Policies, or any branding guidelines Brandfolder makes available to Developer;
- frame, distribute, resell, or permit access to the Brandfolder Properties by any third party (except in connection with the Developer Application and in accordance with the obligations set forth in this Agreement);
- use the Brandfolder Properties other than in accordance with the written instructions or Documentation Brandfolder provides, including by circumventing or attempting to circumvent the ordinary use or operations of Brandfolder Properties;
- use the Brandfolder Properties in violation of any applicable laws;
- interfere with or disrupt any End Users' access to the Brandfolder Properties;
- reverse engineer or attempt to gain unauthorized access to Brandfolder Properties;
- use Brandfolder Properties to submit or distribute any malware (or any undisclosed feature designed to delete, disable, or otherwise harm any software, data, device, or system);
- request, obtain, or store any End User's login credentials for a Service in connection with the use of the Developer Application;
- interfere with or disrupt Brandfolder's pricing structure of the Services or ability to provide services or support to Customers; or
- allow or facilitate access to the Services in excess of an End User's authorized or normally intended use.
2.4 Representations and Warranties. Developer represents and warrants that the Developer Application (a) complies with all applicable laws, rules, regulations, or orders, including those relating to data privacy and the processing of End User Content and (b) meets industry standard security measures and controls to protect End User Content.
2.5 Suspension and Audit. Brandfolder may suspend or revoke Developer's access to the Brandfolder Properties at any time if Brandfolder reasonably believes, in its sole discretion, that the Developer Application violates this Agreement or is harmful to Brandfolder, End Users, or the Program or is using the Brandfolder Properties in violation of the Policies. Brandfolder reserves the right to audit the Developer Application to ensure compliance with this Agreement and Developer agrees to cooperate with any such audit and provide information as requested by Brandfolder.
3.1 Developer Tools. Access to and use of the Developer Tools under this Agreement are provided to Developer at no charge as part of Developer's participation in the Program. Brandfolder reserves the right to charge a fee for use of the Developer Tools or establish a revenue sharing model under express and separate written agreement by the Parties.
3.2 Developer Application. Developer may charge End Users fees to use the Developer Application provided that, except under express and separate written agreement by the Parties, Developer shall not commercially sell, rent, lease, sublicense, redistribute, or syndicate use of Brandfolder Properties.
4. Intellectual Property.
4.1 Brandfolder. As between the Parties, all right, title, and interest in and to the Brandfolder Properties is owned by Brandfolder notwithstanding any other provision in this Agreement. Except as expressly set forth in this Agreement, Brandfolder does not convey any rights to Developer or any End User. The Brandfolder Properties, including the Brandfolder API, may be updated and modified by Brandfolder from time to time. Brandfolder will use reasonable efforts to notify Developer via email of major changes, but Developer is solely responsible for the ongoing compatibility of the Developer Application with the Brandfolder Properties.
4.2 Developer. As between the Parties, Developer retains all its right, title, and interest in and to the Developer Application, excluding any Brandfolder Properties that may be contained or used therein, and Developer's Trademarks.
4.3 Trademark License. For the term of this Agreement:
4.3.1 To Brandfolder. Developer hereby grants Brandfolder a revocable, limited, non-exclusive, non-sublicensable license to use Developer's Trademarks and other materials provided by Developer to Brandfolder to identify Developer as a member of the Program and to promote the Developer Application or as otherwise set forth in this Agreement. Brandfolder acknowledges that, except for this limited license, Developer retains all right, title and interest in such Trademarks and materials.
4.3.2 To Developer. To the extent Developer's use of the Brandfolder Properties causes a Brandfolder Trademark to appear within or in connection with Developer Application, Brandfolder grants to Developer, until the expiration or termination of this Agreement, a revocable, limited, non-exclusive, non-sublicensable license to display Brandfolder Trademarks solely as they appear when Developer uses the Brandfolder Properties in connection with the Developer Application. Any goodwill derived from such use of Brandfolder Properties shall inure solely to Brandfolder's benefit. This license is subject to Developer's compliance with any branding guidelines provided to Developer by Brandfolder or as may be posted on Brandfolder's website.
4.4 Prohibited Actions. Developer will not at any time (a) contest or aid in contesting the validity or ownership of the Brandfolder Properties, or take any action in derogation of Brandfolder's rights therein, (b) adopt or register Brandfolder Trademarks or other intellectual property or proprietary rights in any jurisdiction in manner that may cause a likelihood of confusion as to the source or ownership of the Developer Application and the Brandfolder Properties, (c) remove or obscure any Brandfolder Properties or other intellectual property notices, or (d) state or imply that Brandfolder endorses Developer's company, product or the Developer Application, except as otherwise permitted under this Agreement.
4.5 Brandfolder Development. Developer acknowledges and agrees that Brandfolder may currently or in the future develop information and materials internally, or receive information and materials from other parties, that are similar to and/or competitive with the Developer Application, and nothing in this Agreement will be construed as a representation or agreement that Brandfolder will not distribute, market, promote or develop independently or have developed applications, services, products, concepts, systems, or techniques that are similar to and/or compete with the applications, services, products, concepts, systems, or techniques contemplated by or embodied in any Developer Application.
5. Data Use and Security.
5.2 End User Content. Developer will (a) access, use, transfer, disclose, or otherwise process End User Content through the Developer Application only as authorized by the End User and in accordance with Developer's terms with the End User for use of the Developer Application and (b) not modify End User Content in a manner that adversely affects the integrity of End User Content. For clarity, Brandfolder shall not be liable for, or have any responsibility in connection with, End User Content processed by Developer or the Developer Application, and such processing with regard to End User Content is in no way by or on behalf of Brandfolder.
5.3 Security Incidents. Developer will immediately notify Brandfolder of any Security Incident. Developer will provide Brandfolder with information available to Developer resulting from its investigation, mitigation and remediation efforts, including any potential impact or effect on the Brandfolder Properties or End Users, the nature of the incident, specific information disclosed (if known), and will provide further information and assistance related to the Security Incident as may be requested by Brandfolder. Developer will be solely responsible, at its own expense, for investigation, mitigation and remediation and its notifications to End Users and regulatory authorities in accordance with applicable laws and industry standards, provided that Developer must obtain Brandfolder's approval for any breach notifications to End Users that refer directly or indirectly to Brandfolder.
6. Confidentiality. Developer agrees not to disclose, duplicate, publish, release, transfer or otherwise make available Brandfolder Confidential Information in any form to, or for the use or benefit of, any person or entity without Brandfolder's prior written consent. "Confidential Information" means all non-public, proprietary business, technical, legal, or financial information disclosed to or learned by Developer in connection with the business relationship between the parties which Brandfolder has identified as confidential at the time of disclosure or, based on the nature of the information or circumstances surrounding disclosure, that would reasonably be understood to be confidential. For avoidance of doubt, the Brandfolder Properties, as well as any content, in-development features and other information disclosed to Developer on or in the Brandfolder API test environment site, are Brandfolder's Confidential Information. Confidential Information does not include (a) information that was generally known to the public at the time of disclosure, (b) information that becomes generally known to the public (other than through a breach of this Section 6) after disclosure, (c) information that was in Developer's possession free of any obligation of confidentiality prior to disclosure by Brandfolder, (d) information that is rightfully received by Developer from a third party without any restriction on disclosure, or (e) information that was independently developed by Developer without reference to or use of Brandfolder's Confidential Information.
THE BRANDFOLDER PROPERTIES AND BRANDFOLDER CONFIDENTIAL INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BRANDFOLDER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE BRANDFOLDER PROPERTIES OR ANY DATA OR CONTENT MADE AVAILABLE THROUGH THE BRANDFOLDER PROPERTIES, AND BRANDFOLDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, OR RESULTS TO BE OBTAINED. BRANDFOLDER DOES NOT WARRANT THAT THE BRANDFOLDER PROPERTIES WILL BE ERROR-FREE, OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME, OR BE SECURE OR PRIVATE.
BRANDFOLDER MAY UPDATE OR MODIFY THE BRANDFOLDER PROPERTIES AT ANY TIME, AND THE DEVELOPER APPLICATION MAY CEASE TO INTERACT PROPERLY (OR AT ALL) WITH THE SERVICES AS A RESULT OF SUCH MODIFICATION. BRANDFOLDER HAS NO LIABILITY TO DEVELOPER OR TO END USERS IN CONNECTION WITH ANY SUCH MODIFICATION OR TERMINATION.
8. Indemnification. Developer agrees to indemnify and hold harmless Brandfolder and its corporate affiliates, directors, officers, employees, successors, assigns and agents from and against any claim, action, proceeding or cause of action, including but not limited to those brought by End Users, and all resulting loss, damages, settlement, penalty, cost, expense or liability (including but not limited to reasonable attorney fees and expenses), arising out of or related to the Developer Application or Developer's breach of this Agreement or violation of any law or regulation or the rights of any third party.
9. LIMITATION OF LIABILITY.
TO THE EXTENT PERMITTED BY LAW, BRANDFOLDER WILL NOT BE LIABLE FOR ANY LOST PROFITS, GOODWILL, OR REVENUES OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM OF ANY NATURE, WHETHER IN CONTRACT, TORT, OR UNDER ANY THEORY OF LIABILITY, ARISING UNDER THIS AGREEMENT, EVEN IF A PARTY HAS BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES OR IF A PARTY'S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. BRANDFOLDER'S ENTIRE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
10. Term and Termination.
10.1 Term. This Agreement will remain in effect until terminated by either party by written notice to the other party. Developer acknowledges that Brandfolder will have no liability to Developer in connection with the termination of this Agreement or the revocation of Developer's access to Brandfolder Properties. Upon termination of this Agreement for any reason all rights and obligations of the Parties hereunder will cease (except as set forth in Section 10.2 (Survival)).
10.2 Survival. The following sections, and any section required to give effect to such sections, will survive termination or expiration of this Agreement: 2.2, 2.5, 4, 5, 6, 7, 8, 9, 10.2, and, to the extent necessary to effectuate the foregoing, 11 (General). Notwithstanding any provision of a surviving section, Developer will have no further right to use the Brandfolder Properties or distribute the Developer Application upon termination of this Agreement.
11.1 Independent Parties. The Parties are independent contractors. Nothing in this Agreement will be construed to create a partnership, joint venture, agency, employment, or fiduciary relationship between the Parties. Neither Party has any right or authority to assume or create any obligation of any kind, expressed or implied, in the name of or on behalf of the other Party. Without limiting the generality of the foregoing, Developer is not authorized to bind Brandfolder to any liability or obligation or to represent that Developer has any such authority. Developer must not make any representations, warranties or commitments binding Brandfolder without Brandfolder's prior written consent.
11.2 Export Controls. Developer is responsible for complying with U.S. export controls and economic sanctions, including the Export Administration Regulations (EAR) and the regulations administered by the Treasury Department's Office of Foreign Assets Control (OFAC), any applicable import laws, regulations and requirements of the country of importation, and all other applicable laws, regulations and requirements which may apply to downloads of software. Developer is responsible for any violation of those laws, regulations and requirements.
11.3 Notices. All notices permitted or required under this Agreement may be given via email. Notices from Developer to Brandfolder will be sent to firstname.lastname@example.org. Notices from Brandfolder to Developer will be sent to the contact name and email address that Developer provides in the personal settings for Developer's applicable Service account.
11.4 Assignment. Brandfolder may assign this Agreement to its affiliates or in connection with a merger or similar transaction or to a company acquiring substantially all of its assets, equity, or business, without any requirement to obtain permission for such assignment. Developer may not assign, delegate, subcontract or otherwise transfer, directly or by operation of law, any of the rights or obligations of this Agreement, or any part or all of this Agreement without the prior written consent of Brandfolder.
11.5 Force Majeure. Neither party is liable for delay or default under this Agreement if caused by conditions beyond its reasonable control, provided that the party suffering from any such conditions shall use reasonable efforts to mitigate against the effects of such conditions.
11.6 Amendment; Waiver. Unless otherwise expressly stated herein, this Agreement may be modified only by a written amendment or agreement executed by an authorized representative of each party. The waiver of any breach of any provision of this Agreement will be effective only if in writing, and no such waiver will operate or be construed as a waiver of any subsequent breach.
11.7 Enforceability. If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this Agreement is to remain in effect as written. Notwithstanding the foregoing, if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this Agreement, the entire Agreement will be considered null and void.
11.8 Governing Law. This Agreement is governed by the laws of the State of Washington, without regard to its conflicts of law rules, and each party hereby consents to exclusive jurisdiction and venue in the state and federal courts located in Seattle, Washington for any dispute arising out of this Agreement.
11.9 Entire Agreement. This Agreement represents the entire agreement between Brandfolder and Developer with respect to the Developer Application and supersedes all prior or contemporaneous oral or written agreements, representations and negotiations with respect to such subject matter.
11.10 Revisions. Brandfolder reserves the right to modify this Agreement by posting a revised version on the Brandfolder website. Revisions will be effective fifteen (15) days after posting. Continued use of the Brandfolder Properties after the effective date of a revision will constitute Developer's acceptance of the modified Agreement. If Developer does not agree to a revision, Developer may terminate this Agreement by providing written notice to Brandfolder.
"Brandfolder API" means an application programming interface or other similar development tool which establishes an interface with an online Service.
"Brandfolder Properties" means the Services and the Developer Tools, and all Brandfolder technology, software, data, methodologies, improvements, Trademarks and Documentation used to provide or made available in connection with and all intellectual property and proprietary rights in and to the foregoing.
"Customer" means an individual or entity authorized to access and use the Services under a Subscription Agreement.
"Developer Application" means a template, integration, connector, add-on solution, website or software application created by or on behalf of Developer that extends to or integrates with the Services, accesses or calls the Brandfolder API, or otherwise uses or interacts with the Brandfolder Properties.
"Documentation" means documentation provided by Brandfolder on its websites or posted publicly by Brandfolder that is uniformly available and applicable to all Brandfolder customers and developers and relates to the operation and use of the Brandfolder Properties, including user manuals, operating instructions, help articles, and release notes, each as updated by Brandfolder from time to time.
"End Users" means all Brandfolder Customers and their Users.
"End User Content" means any data, file attachments, text, images, reports, personal information, or other content that is uploaded or submitted to or transferred from the Developer Application by End Users and is processed by Developer on behalf of End Users.
"Parties" or "Party" means Developer and/or Brandfolder, as applicable.
"Security Incident" means any potential or confirmed breach of security resulting in the accidental, unauthorized, or unlawful destruction, loss, alteration, access, or disclosure of Brandfolder Confidential Information or End User Content.
"Services" means the Subscription Service and any other online service or application provided or controlled by Brandfolder.
"Subscription Agreement" means the applicable agreement(s) with Brandfolder governing access to and use of the Services.
"Subscription Service" means the subscription-based online digital asset management services and applications that are provided by Brandfolder.
"Trademarks" means any word, phrase, design, symbol, domains, logo or a combination thereof that identifies a Party's goods or services.
"User" means any individual permitted or invited by a Customer or another User to access and use the Services available to a Customer under a Subscription Agreement.