Last Updated: May 17, 2022

These Terms of Use (these “Terms” or this “Agreement”) govern your use of the BrandKeep website and/or platform (the “Service”). By accessing, viewing, or using the Service, you acknowledge that you have read, understand, and agree with these Terms. If you disagree with these Terms and/or the Privacy Policy and/or do not wish to be bound by these Terms or the Privacy Policy, then do not use the Service. If you are accepting these Terms of Use on behalf of a business, you represent and warrant that you have sufficient authority to bind the business, and that your acceptance of these Terms shall bind the entity on whose behalf you are accepting these Terms.

 1.     Your Use of the Service. This section describes your license to use the Service. 

1.1.   BrandKeep grants you a limited, nonexclusive, nontransferable, nonsublicensable, revocable license to use the Service subject to the restrictions set forth in these Terms of Use.

1.2.   The Service is offered and available to commercial users who are at least 18 years of age or older in the United States of America or any of its territories or possessions. By using the Service, you represent and warrant that you are legally able to form a binding contract with BrandKeep and meet all of the eligibility requirements for doing so in the state in which you are located. If you are under the age of 18 and/or are otherwise unable to enter into a binding contract, you must not access the Service. The Service is not intended for children under the age of 13.

2.     Access and Account Security. This section describes your access to the Services and your BrandKeep account.

2.1.   Other than as expressly set forth in these Terms or the Privacy Policy, any and all information that you upload to the Service shall be strictly for storage purposes only. In the event of future functionality or future features of the Service that require the use of the information that you have uploaded, you will be asked to opt-in to such functionality prior to the use of any such information. For the avoidance of doubt, any and all manufacturer terms uploaded by you to the Service, including, but not limited to, MAP policies, pricing, workbooks, warranty information, and pre-season product information, will not be shared or otherwise available to us or any other user of the Service without your prior authorization.

2.2.   Upon request to us, you may request a backup that includes all then-current User Content and information in CSV format.  Upon the termination of your subscription to use the Service, we have no obligation to retain, and may delete, all User Content and information.

2.3.   BrandKeep reserves the right to withdraw or amend the Service and any service or material it provides in its sole discretion and without notice. BrandKeep will not be liable if for any reason all or any part of the Service is unavailable at any time or for any period, or if, as a result of such unavailability, you claim to suffer any damages. From time to time, BrandKeep may restrict access to some parts of the Service, or the entire Service, to users, including registered users.

2.4.   You are responsible for

·       Making all arrangements necessary for you to have access to the Service. 

·       Ensuring that all users whose access to the Service is facilitated by you are aware of these Terms of Use and comply with them.

2.5.   To access the Service or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Service that all the information you provide to BrandKeep is correct, current, and complete. You agree that all information you provide to register with BrandKeep and to use the Service, including but not limited to information provided through the use of any interactive features of the Service, is governed by our Privacy Policy, and you consent to all actions BrandKeep takes with respect to your information consistent with BrandKeep’s Privacy Policy.

2.6.   You agree that your username, password, and any other component of BrandKeep’s security procedures are confidential, and you must not disclose such information to any other person or entity. You also agree not to provide any other person with access to the Service or portions of it using your username, password, or other security information. You agree to notify BrandKeep immediately of any unauthorized access to or use of your username or password or any other breach of security.

2.7.   BrandKeep  has the right to disable any username, password, or other identifier, whether chosen by you or provided by BrandKeep, at any time in our sole discretion for any or no reason, including, but not limited to, if, in our opinion, you have violated any provision of these Terms of Use, and/or any local, state, or federal law, rule, or regulation.

3.     Intellectual Property Rights. This section describes the intellectual property rights held by BrandKeep and by you as you use the Service.

3.1.   The Service and its contents, features, and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection, and arrangement thereof), are owned by BrandKeep, LLC, a Michigan limited liability company (“BrandKeep”), its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.  You must not reverse engineer, decompile, disassemble, reproduce, or create any derivative works from any portion or subset of the Service or any content thereon.

3.2.   You represent and warrant that BrandKeep has the right to store any and all third party data, software, images, and content (“Third Party Materials”) that you upload, submit, or enter into the Service, and such Third Party Materials are and will be free from any claims of infringement of any person’s or entity’s proprietary, intellectual property, or other rights under any federal, state, local or other laws (including, without limitation, trade secret, copyright, trademark and U.S. patent rights).

3.3.   If you violate the intellectual property rights of BrandKeep or a third party, your right to use the Service will cease immediately. No right, title or interest in or to the Service or any content on the Service not uploaded by you is transferred to you, and all rights not expressly granted are reserved by the content’s owner.

3.4.   BrandKeep’s name and logo, and all related names, logos, product, and service names, designs, and slogans are trademarks of BrandKeep or its affiliates or licensors. You must not use such marks without the prior written permission of BrandKeep. All other names, logos, product, and service names, designs and slogans on BrandKeep are the trademarks of their respective owners.

4.     Content Standards; License for Use of Content. This section describes the content standards that apply to your User Content and the license you grant to BrandKeep in order for BrandKeep to use your User Content to ensure that BrandKeep functions as you and we intend.

4.1.   These content standards apply to any and all content you upload, submit, or enter into the Service (“User Content”) and use of any interactive services offered by BrandKeep. User Content must comply with all applicable local, state, and federal laws, rules, and regulations. By submitting User Content, you grant to BrandKeep  a non-exclusive, worldwide, irrevocable, perpetual, transferable, and royalty-free right to use, copy, distribute, display, perform, modify, translate, store, or otherwise use the User Content in order for the Service to function. You represent and warrant that you own or have all necessary rights to provide your User Content and license it to BrandKeep for use as described above; that your User Content is accurate; and that use of your User Content does not violate these Terms or violate or infringe on the rights of any third party and will not cause harm.  At our request, you will provide us with documentation to verify your compliance with these Terms. Without limiting the foregoing, User Content must not:

4.1.1.      Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.

4.1.2.      Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy.

4.1.3.      Be likely to deceive any person.

4.1.4.      Promote any illegal activity, or advocate, promote, or assist any unlawful act.

4.1.5.      Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.

4.1.6.      Impersonate any person or misrepresent your identity or affiliation with any person or organization.

4.1.7.      Give the impression that they emanate from or are endorsed by BrandKeep or any other person or entity, if this is not the case.

5.     Prohibited Uses. This section describes activities you agree not to do as you use the Service.

5.1.   You may use the Service only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Service:

·                In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries).

·                For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.

·                To transmit, or procure the sending of, any advertising or promotional material inconsistent with the Service, including any “junk mail,” “chain letter,” or “spam,” or any other similar solicitation.

·                To impersonate or attempt to impersonate any person or entity (including, without limitation, by using e-mail addresses or other personally identifying characteristics associated with such a person or entity.

·                To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of Service, or which, as determined by us, may harm the Service or users of the Service or expose them to liability.

 5.2.   Additionally, you agree to not:

·                Use the Service in any manner that could disable, overburden, damage, or impair the Service or interfere with any other party’s use of the Service, including their ability to engage in real time activities through the Service.

·                Use any robot, spider, or other automatic device, process or means to access the Service for any purpose, including monitoring or copying any of the material on the Service.

·                Use any manual process to monitor or copy any of the material on the Service or for any other unauthorized purpose without our prior written consent.

·                Use any device, software, or routine that interferes with the proper working of the Service.

·                Introduce any viruses, trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful.

·                Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Service, the server(s) on which the Service is stored, or any server, computer, or database connected to the Service.

·                Attack the Service via a denial-of-service attack or a distributed denial-of-service attack.

·                Otherwise attempt to interfere with the functionality of the Service.

6.     Payment Terms. This section describes the fees and payment obligations for you to use the Service.

6.1.   Fees. In consideration for the Service, you will to pay BrandKeep the monthly or annual subscription fee specified at the time of purchase or renewal of the Service.  After the initial subscription term, your subscription to the Service shall automatically renew for successive subscription terms unless you terminate your subscription on the BrandKeep platform.

6.2.   Payment. You agree to keep your billing information up to date on the BrandKeep platform. If you use a credit card to make payment hereunder, you authorize BrandKeep to charge such credit card on a recurring basis. All payments for use of the Service shall be paid by you in advance. BrandKeep reserves the right to correct any billing errors or mistakes that BrandKeep identifies even if BrandKeep has already issued an invoice or received payment. 

6.3.   No Refunds.  There shall be no refunds if you terminate your use of the Service. Instead, your use of the Service will continue until the next billing cycle at which time your access to the Service shall terminate and no further payments will be required.

6.4.   Cardholder Data.  All payments made by you to BrandKeep shall be facilitated through a third party payment processing service. Such third party’s terms of service can be found at https://protect-us.mimecast.com/s/pwIXC31JqXiXr46IgaGVe | https://stripe.com/us/terms. All information that you provide in connection with a monetary transaction interaction with the Service must be accurate, complete, and current. BrandKeep outsources payment card functions and payment processing to a third party or parties and BrandKeep shall have no liability whatsoever with respect to any payment processing or such third-party services.

7.     Monitoring and Enforcement; Termination. This section describes BrandKeep’s right to enforce the terms of this Agreement.

7.1.   BrandKeep at all times shall have the right to:

·                Remove or refuse to host any content for any or no reason in our sole discretion.

·                Take any action with respect to any content that BrandKeep deems necessary or appropriate in its sole discretion, including if it believes that such content violates the Terms of Use, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service or the public, or could in any way create liability for BrandKeep .

·                Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.

·                Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of  the Service.

·                Terminate or suspend your access to all or part of the Service for any or no reason, including without limitation, any violation of these Terms of Use, or local, state, or federal law, rule, or regulation.

7.2.   Without limiting the foregoing, BrandKeep has the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Service. YOU WAIVE AND HOLD HARMLESS BRANDKEEP AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY ADMINISTRATOR OF THE WEBSITE OR SERVICE DURING OR AS A RESULT OF SUCH AN  INVESTIGATION AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER BRANDKEEP  OR LAW ENFORCEMENT AUTHORITIES. 

7.3.   BrandKeep does not review any material before it is posted on to the Service, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, BrandKeep  assumes no liability for any action or inaction regarding transmissions, communications, or content placed on the Service by any user or third party and shall have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

8.     Use the Service at Your Own Risk; Disclaimer of Warranties; Limitation of Liability. BrandKeep limits its potential liability to you in this section.

8.1.   You agree that your access to and use of the Service is at your own risk. BrandKeep will have no responsibility for any harm that results from your access to or use of the Service, any related site, or its contents.

8.2.   Disclaimer of Warranties.

8.2.1.      You understand that BrandKeep cannot and does not guarantee or warrant that files available for downloading from the internet or the Service will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. BRANDKEEP WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER MATERIAL DUE TO YOUR USE OF THE SERVICE OR TO YOUR DOWNLOADING OF ANY MATERIAL HOSTED ON THE SERVICE, OR FROM ANY WEBSITE LINKED TO THE SERVICE.

8.2.2.      YOUR USE OF THE SERVICE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE IS AT YOUR OWN RISK. THE SERVICE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER BRANDKEEP NOR ANY PERSON ASSOCIATED WITH BRANDKEEP MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER BRANDKEEP NOR ANYONE ASSOCIATED WITH BRANDKEEP REPRESENTS OR WARRANTS THAT THE SERVICE ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; THAT THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

8.2.3.      BRANDKEEP HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

8.3.   Limitation on Liability. IN NO EVENT WILL BRANDKEEP, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, MEMBERS, MANAGERS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, ANY WEBSITES LINKED TO IT, OR ANY CONTENT ON THE SERVIVE OR SUCH OTHER WEBSITES, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. IN NO EVENT WILL THE TOTAL LIABILITY TO YOU BY BRANDKEEP, ITS AFFILIATES, ITS MEMBERS, ITS MANAGERS, ITS EMPLOYEES, AND ITS CONTRACTORS, FOR ANY CLAIMS, DAMAGES, LOSSES, AND CAUSES OF ACTION EXCEED THE AMOUNT YOU PAID TO BRANDKEEP IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO YOUR CLAIM OR $500, WHICHEVER IS GREATER.

9.     Indemnification. If you do something you shouldn’t have done or don’t do something you should have, BrandKeep can look to you for indemnification. You agree to defend, indemnify, and hold harmless BrandKeep, its affiliates, licensors, and service providers, and its and their respective officers, directors, members, managers, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Service, including, but not limited to, your User Content; any use of the Service other than as expressly authorized in these Terms of Use; your use of any information obtained from the Service; the violation of these Terms of Service by a third party to whom you granted your access to the Service. 

 10.  Third Party Access. If a third party uses your account for the Service, it needs to adhere to these Terms. If you grant an employee, agent, volunteer, contractor, or other Third Party access to your data, such Third Party shall be deemed to have read, understand, and agree with these Terms. Under no circumstances shall BrandKeep be liable for any action taken by such a Third Party, including, but not limited to, data loss, data corruption, a violation of Content Standards, and any action on another site or via a different entity which the Third Party uses your data accessed on the Service.

11.  Miscellaneous.

11.1.       No waiver of any breach of any provision of these Terms will be deemed a waiver of any preceding or succeeding breach or of any other provision of these Terms. No extension of time for performance of any obligations or acts will be deemed a extension of the time for performance of any other obligations or acts.

11.2.       In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of these Terms, but these Terms shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained herein, unless the deletion of such provision or provisions would result in such a material change so as to cause completion of the transactions contemplated herein to be unreasonable.

11.3.       These Terms shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to its principles of conflicts of laws. By using the Service, you irrevocably submit to the exclusive jurisdiction of the courts of the State of Michigan located in Kent County, Michigan, and the United States District Court for the Western District of Michigan for the purpose of any suit, action, proceeding, or judgment relating to or arising out of these Terms and your use of the Service. You irrevocably consent to the jurisdiction of any such court in any such suit, action, or proceeding and to the laying of venue in such court, and you irrevocably waive any objection to the laying of venue of any such suit, action, or proceeding brought in such courts and any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.

11.4.       The Service is controlled by facilities in the United States of America. BrandKeep makes no representations that the Service is appropriate or available for use in other locations. If you access the Service from any location outside the United States of America, you do so at your own risk and you are solely responsible for your compliance with all local laws and regulations.

11.5.       These Terms of Use are the entire and exclusive agreement between BrandKeep and you regarding the Service, and these Terms of Use supersede and replace any prior agreements between BrandKeep and you regarding the Service.