Web Services Agreement

This Web Service Agreement (the "Agreement") governs Licensee's use of Brandfolder' Application Program Interfaces (APIs) that enable the transfer of content to and from, and permit access to certain other core functionality of, Brandfolder's hosted digital asset management service ("Service"), together with any HTML scripts, sample source code, documentation, executables, or similar materials that Brandfolder makes available in connection with such APIs (collectively, "Web Services").

1. Acceptance of Agreement. As used in this Agreement, "Licensee" (or "you") means the company that entered into a customer agreement with Brandfolder, or an agreement with a Brandfolder channel partner, granting rights to Licensee to use the Service (regardless of the name of that agreement) (a "License Agreement"). This Agreement is subject to and incorporated into the License Agreement, and together with the License Agreement, this Agreement forms part of a binding contract between Brandfolder, Inc. ("we," "us," or "Brandfolder") and Licensee. BY ENTERING INTO A LICENSE AGREEMENT WITH BRANDFOLDER AND/OR USING THE WEB SERVICES, LICENSEE AGREES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
2. Relationship to License Agreement. Nothing in this Agreement will limit or supersede any rights with respect to Licensed Material (as defined below) or the Service that either party may have granted to the other in a License Agreement, and nothing in this Agreement will limit or any representations, warranties or covenants that either party has made with respect to Licensed Material under a License Agreement. "Licensed Material" means all still images, video, audio products, visual representations generated optically, electronically or digitally, or any other content uploaded by Licensee into the Service under a License Agreement.
3. License and Permitted Use; Restrictions.
1. License; Permitted Use. Brandfolder hereby grants to Licensee a limited, non-exclusive, non-transferable (except to the extent expressly otherwise provided herein), on-sublicenseable right and license, during the term of the License Agreement, to use the Web Services solely to access the functions that Brandfolder makes available via its Web Services in accordance with (a) the terms and conditions of this Agreement and (b) any published specifications, documentation, or guidelines that Brandfolder makes available for the Web Services. Licensee may use the Web Services whenever the Web Services are available. Brandfolder reserves the right to impose usage or other technical restrictions on use of the Web Services at any time, with or without notice. Licensee may allow its third party contractors to use the Web Services solely for the benefit of Licensee, and Licensee shall remain liable for all third party contractors' acts and omissions arising from or related to this Agreement and the Web Services.
2. Restrictions. Licensee agrees not to: (a) "frame," distribute, or resell the Web Services, (b) permit access to the Web Services by any third party (other than its employees and individual independent contractors bound by confidentiality obligations substantially as protective of the Web Services as the provisions of this Agreement), (c) use the Web Services other than in compliance with all applicable federal, state, and local laws, (d) interfere with any other user's access to the Web Services, (e) reverse engineer, attempt to gain unauthorized access to the Web Services, or attempt to discover the underlying source code or structure of the Web Services or the functionality provided via the Web Services, (f) use the Web Services to introduce into Brandfolder' systems any routine, device or other undisclosed feature, including a so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse, or trap door, that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, or which is intended to provide unauthorized access or to produce unauthorized modifications, (g) sell, rent, lease, sublicense, distribute, redistribute, syndicate the Web Services, (h) modify the Web Services, or (i) use any robot, spider, data gathering or extraction tool, or similar mechanisms, with respect to the Web Services.
3. Responsibility for Account Credentials/Logins. Licensee is responsible for all use of the Web Services by its employees and third party contractors, and for any other use that occurs under user accounts or credentials that Brandfolder provisions for Licensee. Licensee will notify Brandfolder of unauthorized access to the Web Services of which it becomes aware.
4. Term and Termination; Suspension. This Agreement will remain in effect throughout the term of the License Agreement, unless earlier terminated in accordance with this Section 4. Either party may terminate this Agreement at any time, for any or no reason, upon five (5) days' written notice to the other party given in accordance with the License Agreement. Termination of the Agreement will not, in and of itself, result in the termination of the License Agreement. Without limiting the foregoing, Brandfolder may suspend Licensee's access to the Web Services upon written notice (including via email) to Licensee if it reasonably believes that Licensee has breached this Agreement or discontinues access to the Web Services for substantially all Brandfolder Licensees. Upon termination of this Agreement for any reason: (a) all rights and obligations of the parties will cease, except that the following sections of the Agreement will survive any such termination or expiration: 3.2, 3.3, 4, 5, 6, 7, 8, 9 and 10; and (b) notwithstanding any provision of a surviving section, Licensee will have no further right to use the Web Services.
5. Disclaimer
1. Disclaimer of Warranties. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE LICENSE AGREEMENT, BRANDFOLDER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE WEB SERVICES, WHETHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AVAILABILITY, ACCURACY, OR RESULTS TO BE OBTAINED. BRANDFOLDER DOES NOT WARRANT THAT THE WEB SERVICES WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.
2. No Liability for Modifications or Termination. Licensee acknowledges that Brandfolder may modify the Web Services from time to time, and that Brandfolder is not obligated to notify Licensee of any such modification. It is your responsibility to ensure that calls or requests you make to the Web Services are compatible with our then-current Web Services. BRANDFOLDER WILL HAVE NO LIABILITY TO LICENSEE, OR TO LICENSEE'S END USERS OR LICENSEES, IN CONNECTION WITH ANY MODIFICATION OF THE WEB SERVICES OR TERMINATION OF THIS AGREEMENT.
3. Inapplicability of Disclaimer to Licensed Material. For avoidance of doubt, the disclaimers set forth in this Section 5 apply only with respect to the Web Services, and will not be deemed to limit any covenant, representation or warranty that Brandfolder may have made with respect to Services under the License Agreement.
6. Intellectual Property. As between the parties, Brandfolder retains all right, title and interest in and to the Web Services. Except for the limited rights to access and use the Web Services explicitly granted in this Agreement, this Agreement does not grant Licensee any right or license in or to any of Brandfolder' intellectual property or proprietary rights. If Licensee provides or communicates any suggestions for improvements or enhancements to the Web Services (collectively, "Feedback"), Brandfolder will own all right, title, and interest in and to the Feedback, and Brandfolder will be entitled to use the Feedback without restriction or any obligation of compensation to Licensee. Licensee hereby irrevocably assigns all right, title and interest in and to the Feedback to Brandfolder.
7. Confidentiality. The Web Services, together with details about Brandfolder' API test suite, performance specifications for the Web Services, technical emails and responses to support inquiries, are the confidential and proprietary information of Brandfolder, regardless of the manner in which disclosed to Licensee ("Brandfolder Confidential Information"). Except as expressly provided herein, Licensee will not (a) distribute or disclose Brandfolder Confidential Information to any third party, or (b) use Brandfolder Confidential Information for any purpose other than expressly permitted under this Agreement.
8. Limited Liability; Exclusion of Certain Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE LICENSE AGREEMENT, IN NO EVENT WILL BRANDFOLDER BE LIABLE TO LICENSEE OR LICENSEE'S END USERS OR LICENSEES, WHETHER UNDER CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, FOR (I) ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE WEB SERVICES, EVEN IF BRANDFOLDER HAS BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES; OR (II) ANY AMOUNT IN EXCESS OF ONE DOLLARS ($100) FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT.
9. Indemnification. Licensee agrees to defend, indemnify and hold Brandfolder and its corporate affiliates, and its and their directors, officers, employees, successors, assigns and agents, harmless from and against any loss, damage, settlement, penalty, cost, expense or any other liability (including but not limited to reasonable attorney fees and expenses) arising out of any breach of this Agreement by Licensee.

Miscellaneous. In the event of conflict between the terms in this paragraph and the terms in the License Agreement, the terms of the License Agreement shall govern. This Agreement is governed by the internal laws of the State of Colorado, without regard to its conflicts of law rules. Any disputes arising from this Agreement or its enforceability shall be settled by binding arbitration, though a single arbitrator, pursuant to the rules of the American Arbitration Association in effect at the time of the arbitration. To be effective, notices required or permitted under this Agreement must be sent in writing to the applicable address first set forth above. Licensee may not assign this Agreement to a third party without the written consent of Brandfolder. This Agreement will bind and benefit the parties, their successors, and their permitted assigns. The parties are independent contractors to each other in connection with their activities under this Agreement. This Agreement represents the entire agreement between Brandfolder and Licensee with respect to Licensee's use of the Web Services, and this Agreement supersedes any contemporaneous or prior agreements regarding the same.