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Distributor Terms and Conditions

Last Updated: Sep 05, 2024

These Brand Driven Tech Distributor Terms and Conditions (these "Terms") are entered into as of the Effective Date between Brand-Driven Tech, LLC ("BDT") and Distributor. BDT and Distributor are each a "Party" and together the "Parties." Capitalized terms not defined in context have the meaning given in Section 1 below.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY CLICKING "I ACCEPT" WHEN REGISTERING FOR THE SERVICES, EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, OTHERWISE INDICATING ACCEPTANCE OF THESE TERMS, OR ACCESSING OR USING ANY SERVICES, DISTRIBUTOR IS AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THESE TERMS. IF DISTRIBUTOR DOES NOT AGREE TO THESE TERMS, IT IS NOT AUTHORIZED TO USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THESE TERMS ARE LEGALLY BINDING UPON IT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THAT INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS, IN WHICH CASE THE TERM "DISTRIBUTOR" WILL REFER TO THAT ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE THIS AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS, THAT INDIVIDUAL MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES.

1. Definitions

  • 1.1. "Authorized Users" means employees and contractors of Distributor that have been authorized to access the Services.
  • 1.2. "BDT Technology" means, individually or collectively, the Services, the Documentation, and any other software, technology, or data provided by BDT to Distributor, including any Updates to these items.
  • 1.3. "Beta Services" means services or features identified as "alpha," "beta," or "evaluation," or words or phrases with similar meanings.
  • 1.4. "Branding Features" means the logos, trademarks, service marks, brand names and other indicia of origin of an End User.
  • 1.5. "Distributor Data" means any text, communications, or other data uploaded to or transmitted through the Services by Distributor.
  • 1.6. "Distributor" means the entity or individual accepting these Terms.
  • 1.7. "Documentation" means any documentation provided or made available by BDT to Distributor under these Terms concerning use of the Services.
  • 1.8. "Effective Date" means the earlier of: (a) the date Distributor first accesses the Services; or (b) the date Distributor registers to use the Services.
  • 1.9. "End User" means a brand, company, sole proprietorship, or other person or entity for which Distributor uses the Services to build one or more Stores.
  • 1.10. "Order" means an online or written ordering document through which Distributor purchases the right to build one or more Stores on behalf of End Users.
  • 1.11. "Product" means any product, merchandise, or other goods distributed by Distributor through a Store on behalf of End Users.
  • 1.12. "Services" means BDT’s online platform for generating, hosting, and maintaining Stores, as further described at branddriventech.com.
  • 1.13. "Store Content" means Product descriptions, images, graphics, audiovisual content, and other materials relating to a particular Store or End User which are uploaded by Distributor or an End User through the Services for use on or in connection with a Store.
  • 1.14. "Store" means an online e-commerce site hosted on behalf of an End User and prepared by Distributor through use of the Services.
  • 1.15. "Third-Party Technology" means any software, source code, object code, models, processes, methods, algorithms, inventions, APIs, SDKs, or other technology which is not owned by BDT.
  • 1.16. "Updates" means periodic enhancements, updates, new features, new functionalities, or other improvements or changes to the Services or any other BDT Technology.

2. Services Overview; Registration

  • 2.1. General. The Services allow distributors to generate, maintain, and otherwise provide branded e-commerce Stores on behalf of End Users.
  • 2.2. Registering an Account; Login Credentials. Notwithstanding anything to the contrary, in order to use the Services, Distributor must register and maintain an account with BDT. In registering an account, Distributor must provide a valid contact name, phone number, e-mail address, and company name. Distributor is responsible for keeping its account registration information current and may update this through the Services. Distributor will be solely responsible for securing and keeping confidential any login credentials generated for Authorized Users’ use of the Services ("Access Credentials") and will immediately notify BDT of any unauthorized use or disclosure of Access Credentials. All accounts are subject to BDT’s written approval and BDT may reject a registration for any reason.

3. Grant of Rights and Restrictions

  • 3.1. Right to Use Services. Subject to Distributor’s strict compliance with these Terms, including the payment of all applicable fees, BDT hereby grants to Distributor a non-exclusive, non-sub-licensable, non-transferable, royalty-free right during the applicable Subscription Period (defined in Section 8.4 below) to use and access the Services solely in order to generate and maintain Stores on behalf of End Users for Distributor’s own business purposes. Each Store generated by Distributor will be subject to the purchase of a subscription and payment of all applicable fees under Section 8.4 below. Unless otherwise specified in an Order, the grant in this Section 3.1 permits Distributor to grant access to an unlimited number of Authorized Users. Distributor is responsible for any action or inaction of its Authorized Users in breach of these Terms.
  • 3.2. License to Documentation. BDT hereby grants to Distributor a non-exclusive, non-sublicensable, non-transferable, revocable, and royalty-free license during the Term to use, copy, and reproduce Documentation as reasonably necessary to support Distributor’s use of the Services.
  • 3.3. Restrictions. Other than as expressly authorized in these Terms, the rights and licenses granted to Distributor in this Section 3 do not include any right to, and Distributor will not, and will not permit anyone to, do any of the following: (a) modify, translate, or create a derivative work of any portion of the BDT Technology; (b) sell, lease, loan, provide, distribute or otherwise transfer any portion of the BDT Technology to any third-party; (c) reverse engineer, disassemble, or otherwise attempt to gain access to the source code of BDT Technology; (d) display or disclose any portion of the Services to any other person; (e) remove, alter, or cover any copyright notices or other proprietary rights notices placed on or in any part of the Service; or (f) permit or cause any third-party to do any of the foregoing.
  • 3.4. Feedback. If Distributor provides any feedback, suggestions, or comments ("Feedback") to BDT concerning the functionality and performance of any portion of the Services (including identifying potential errors and improvements), BDT will be free to use that Feedback for any purpose without payment or restriction.
  • 3.5. Changes to the Services. BDT may modify the Services from time to time through periodic Updates. BDT reserves the right to charge additional fees for Updates that add material new modules, features, or functionality (provided that Distributor is not obligated to purchase those features unless agreed by Distributor, including upon renewal of the next Subscription Period (as defined in Section 8.4)).
  • 3.6. All Rights Reserved. All rights and license not expressly granted by BDT under these Terms are reserved.

4. Generating Stores; Acceptable Use Policy; Orders

  • 4.1. Order Forms. Use of the Services to generate Stores is subject to Distributor completing and executing an Order with BDT, which will Order will detail the number of Stores to be purchased by Distributor, the applicable Domains, and the End Users for those Stores (if known). Distributor may be permitted to purchase blocks of multiple Stores in advance, subject to BDT’s discretion. All Orders are subject to the pricing and payment terms in Section 8. Each Order is subject to BDT’s approval and BDT may reject an Order, or any particular Store detailed in an Order, for any reason at its sole discretion. BDT will notify Distributor once each Store subject to an Order has been approved.
  • 4.2. Acceptable Use Policy. At all times during the Term of this Agreement, Distributor will not (and will not permit others to) do or attempt any of the following in using the Services:
  • 4.2.1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
  • 4.2.2. violate, infringe, or misappropriate the intellectual property rights of others;
  • 4.2.3. build any competing service, product or other offering;
  • 4.2.4. build Stores on behalf of entities or individuals that have not consented to those Stores being built and signed a valid written agreement with Distributor for those services;
  • 4.2.5. use the Services with the intent to deceive, mislead, or otherwise defraud any person;
  • 4.2.6. use the Services to impersonate any individual;
  • 4.2.7. post any defamatory or libelous material, or any material that would be reasonably be considered offensive;
  • 4.2.8. sell, distribute, or market any illegal merchandise in any jurisdiction; or
  • 4.2.9. make any false, deceptive, or misleading claims about any Product.
  • 4.3. End User Compliance. Distributor is responsible for ensuring that each End User complies with the acceptable use policy in Section 4.2 above (the "AUP"). Violation of the AUP by Distributor or the End User will be grounds for BDT to immediately suspend a Store in accordance with Section 4.8 below. Distributor will be liable for any action or inaction of an End User which, if it were attributable to Distributor, would be a breach of these Terms.
  • 4.4. Store Policies. Distributor is responsible for posting on each Store a privacy policy and terms of use, describing the Distributor’s data collection practices, terms of sale, and refund policies ("Store Policies"). As a feature of the Services, BDT may enable Distributors to generate a privacy policy and terms of use, or may furnish sample policies, but Distributor remains responsible for ensuring that all legally required disclaimers and notices are included, and all required consents and authorizations are obtained from Visitors, for End User to conduct business through its Store and process personal information of Visitors. BDT WILL HAVE NO LIABILITY TO DISTRIBUTOR OR ANY THIRD-PARTY ARISING FROM THE STORE POLICIES OR FROM DISTRIBUTOR’S FAILURE TO POST ANY LEGALLY ADEQUATE STORE POLICIES. DISTRIBUTOR ACKNOWLEDGES AND AGREES THAT APPLICABLE PRIVACY LAWS WILL VARY BASED ON END USERS’ LOCATION, SIZE, INDUSTRY, REVENUE, AND DATA COLLECTION PRACTICES, AND DISTRIBUTOR IS SOLELY RESPONSIBLE FOR TAKING THESE INTO ACCOUNT WHEN POSTING STORE POLICIES. ALL STORE POLICIES ARE PROVIDED "AS-IS" AND BDT DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE STORE POLICIES.
  • 4.5. Contract with End User. Distributor is responsible for any agreement, contract, or other arrangement between Distributor and the End User regarding Distributor’s provisions of the Store on behalf of End User ("End User Contract"). Any End User contract may not conflict with these Terms and Distributor is not authorized to make any representations or warranties on behalf of BDT to any End User or any other third-party. BDT is not, and will not be, a party to any End User Contract or any purchase transaction with a visitor to any Store ("Visitor"). In all cases, Distributor, and not BDT, will be deemed the merchant of record for all Products purchased from a Store.
  • 4.6. Branding Features and Store Content. Distributor is solely responsible for obtaining all rights, consents, authorizations, and licenses from its End Users to apply the Branding Features to the applicable Store and to upload all Store Content to the Store. For the applicable Subscription Period (defined below) for each Store, Distributor grants BDT a non-exclusive, royalty-free, sublicensable, non-transferrable (subject to Section 19.2), worldwide, right and license to host, copy, publish, display, publicly perform, maintain, adapt, and otherwise use the Branding Features and Store Content as necessary to provide the Services applicable to each Store.
  • 4.7. Disputes. Any disputes arising under or relating to: (a) an End User Contract, (b) Distributor’s commercial relationship with its End Users; or (c) from any dispute with Visitor, including, without limitation, any Product returns or warranty claims, will be solely between Distributor and the applicable End User or Visitor. Without limiting the foregoing, any dispute relating to the fulfillment of any Products or the quality, delivery, or other characteristic of any Product will solely be between Distributor and the applicable End User.
  • 4.8. Suspension of Stores. BDT reserves the right to suspend any Store if: (a) Distributor or any End User is in violation of the AUP or any other provision of this Agreement; (b) Distributor is delinquent on its payment obligations to BDT under these Terms by more than 14 days; or (c) if Distributor or any End User or Visitor takes any action that may reasonably jeopardize the safety, security, or integrity of the Services (a "Suspension"). Notwithstanding anything to the contrary in this Agreement, BDT may immediately terminate these Terms and all active Stores of Distributor if a Suspension persists for longer than 30 days after BDT has notified Distributor of that Suspension. BDT will use its commercially reasonable efforts to promptly restore any Store to the internet once the condition giving rise to the Suspension has subsided or been cured. BDT will have no liability to Distributor, any End User, or any third-party for any Suspension undertaken in accordance with this Section 4.8.

5. Hosting

  • 5.1. Domains. For each Store, BDT will assign a designated sub-domain, unless the Parties otherwise separate agree in writing that Distributor will use its own domain for the store or BDT will separately acquire a domain for Distributor. If BDT acquires a separate domain for Distributor, this will be subject to additional fees, which will be payable in accordance with Section 8 below.
  • 5.2. Web Hosting. As part of the Services, BDT or its service partners will provide the back-end hosting for all Stores, including applicable web server infrastructure and content delivery.

6. Privacy and Data

  • 6.1. Data Security. For so long as BDT is in possession or control of any Distributor Data, BDT will implement and maintain commercially reasonable and industry standard administrative, physical, and technical measures designed to protect Distributor Data from any unauthorized access or use.
  • 6.2. Use of Distributor Data. Distributor hereby grants BDT a non-exclusive, worldwide, royalty-free right and license to use Distributor Data solely for purposes of providing the Services, delivering maintenance and support, and otherwise performing its obligations under these Terms. BDT’s permitted use of Distributor Data under this Section 6.2 includes the right for BDT to share Distributor Data with its cloud service provider and other agents and subcontractors of BDT, solely for purposes of providing the Services.
  • 6.3. Use of Usage Data. Notwithstanding anything to the contrary, BDT may generate aggregate, deidentified data from Distributor’s use of the Services and Distributor Data ("Usage Data") and use it to operate, improve and support the Services and for other lawful business purposes, including benchmarking and reports. Any use or disclosure of Usage Data will not be identifiable to Distributor or any other individual person.

7. Maintenance and Support. BDT will use its commercially reasonable efforts to provide Distributor with technical support described in the BDT support portal at admin.branddriventech.com. Distributor acknowledges that certain support levels may be subject to additional fees.

8. Subscription Pricing and Payment

  • 8.1. General. Use of the Services, or certain features of the Services, may be subject to fees. Distributor will have an opportunity to review and accept the fees that it will be charged prior to paying any fees. Unless otherwise specifically provided for in these Terms, all fees are in U.S. dollars and are non-refundable, except as required by law.
  • 8.2. Price. BDT reserves the right to determine pricing for the Services. BDT will make commercially reasonable efforts to keep pricing information published on the Services up to date at https://admin.branddriventech.com/pricing. BDT may change the fees for any feature of the Services, including by adding additional fees or charges, if BDT gives Distributor advanced notice of charges before they apply. BDT may, at its sole discretion, make promotional offers with different features and different pricing to any of BDT’s customers. These promotional offers, unless made directly to Distributor, will not apply to Distributor or these Terms.
  • 8.3. Authorization. BDT uses the third-party payment processor Stripe ("Stripe"), but BDT may direct Distributor to use a different payment processor at its sole discretion (Stripe, or another designated payment processor, the "Payment Processor"). Payments that Distributor makes through the Services are processed by the Payment Processor and may be subject to additional terms. Distributor authorizes BDT and the Payment Processor to charge all sums for the Orders that Distributor makes, including all applicable taxes, to the payment method specified in its account. BDT and/or the Payment Processor may seek pre-authorization of Distributor’s designated credit card account prior to Distributor’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover its purchase.
  • 8.4. Subscription Fees. The right to operate, build, and maintain Stores will be offered on subscription basis for each Store (each a "Subscription") with automatically recurring monthly payments per Store (the "Subscription Fees"). BDT will use its commercially reasonable efforts to maintain its current Subscription Fees (including volume pricing for multiple Stores and other information) available at https://admin.branddriventech.com/pricing. All applicable Subscription Fees will be charged each month on the first of each month ("Subscription Billing Date"), with a pro rata charge on the date the applicable Order is approved if the initial purchase is made in the middle of the month. All subscriptions will automatically renew month-to-month on the first of each month (each a "Subscription Period") unless Distributor cancels the Subscription to the Store or BDT terminates it in accordance with these Terms. If Distributor activates a Subscription, then Distributor authorizes BDT or its Payment Processor to periodically charge, on a going forward basis and until cancellation of the Subscription or these Terms, all accrued sums. Distributor’s account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of the Subscription for all applicable fees and taxes for the next Subscription Period. Distributor must cancel its Subscription for any Store before it renews in order to avoid billing of the next periodic Subscription Fee to its account.
  • 8.5. Refunds. Except as otherwise expressly provided for in these Terms, all payments made for the Services (including any Subscription Fees), once paid, are non-refundable, and there are no refunds or credits for partially used period.
  • 8.6. Taxes. Other than net income taxes imposed on BDT, Distributor will bear all taxes, duties, and other governmental charges resulting from these Terms. Distributor will pay any additional taxes as are necessary to ensure that the net amounts received by BDT after all of those taxes are paid are equal to the amounts that BDT would have been entitled to in accordance with these Terms as if the taxes did not exist.

9. Ownership and Intellectual Property

  • 9.1. BDT Technology. BDT owns, and will retain ownership of, all right, title, and interest, including intellectual property rights, in and to the BDT Technology. Except for the limited licenses and rights granted in Section 2, nothing herein grants to Distributor, or should be construed to grant to Distributor, any right, title, or interest in or to any BDT Technology.
  • 9.2. Distributor Data. As between BDT and Distributor, Distributor will be the exclusive owner of all Distributor Data. Distributor will comply with all applicable legal requirements, including obtaining prior consent or licenses if necessary, when transferring or otherwise making available Distributor Data to BDT. Distributor is responsible for ensuring that it has, and will continue to have, the right to upload, or provide access to, the Distributor Data to BDT to perform its obligations under these Terms.
  • 9.3. Store Content; Branding Features. As between BDT, Distributor, and any applicable End User, the End User or Distributor will be the owner of any Store Content or Branding Features. Distributor is responsible for ensuring that: (a) it has, and will continue to have, the right to upload, or provide access to, the Store Content to BDT to perform its obligations under these Terms; and (b) that Distributor has the right to apply any Branding Features on the Stores.

10. Quick Brand on Demand

  • 10.1. General. As part of the Services, BDT may offer Distributor the ability to offer its Quick Brand on Demand product ("QBOD") to End Users. QBOD provides End Users the ability to access the Services on a self-service basis and build and maintain Stores themselves. Distributor may only offer QBOD to its End Users on the terms of the QBOD Terms and Conditions at https://admin.branddriventech.com/qbod-terms-and-conditions.php ("QBOD Terms"), which each End User must agree to in order to use QBOD.
  • 10.2. Payment. Distributor may freely charge End Users any price for Stores generated on QBOD, subject only to any BDT’s minimum advertised price policy made available in advance to Distributor by BDT. Distributor will pay BDT the fees for each Store sold through QBOD to its End Users in accordance with BDT’s pricing page here: https://admin.branddriventech.com/pricing ("QBOD Fees"). For purposes of this Agreement, QBOD Fees will be billed to Distributor the same as all Subscription Fees under Section 8. Further, all terms regarding payment, and all terms and remedies regarding non-payment, will apply to the QBOD Fees the same as Subscription Fees (including, without limitation, Sections 4.8 and 8.) For the avoidance of doubt, non-payment of any QBOD Fees will entitle BDT to suspend or terminate the Services as to Distributor and all of its End Users under Sections 4.8 and 11 respectively.

11. Term and Termination

  • 11.1. Term. These Terms commence on the Effective Date and continue for an initial period of one-year (the "Initial Term"). Upon expiration of the Initial Term, these Terms will automatically renew for subsequent one-year renewal terms (each a "Renewal Term", and together with the Initial Term, the "Term"), unless either Party provides written notice of its intent not to renew at least 30 days prior to the end of the Initial Term or then-current Renewal Term.
  • 11.2. Termination. Either Party may terminate these Terms if the other Party: (a) fails to cure a material breach of these Terms (including a failure to pay fees) within 10 days after written notice of that breach; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, creditors’ arrangement, or comparable proceeding that is not dismissed within 60 days.
  • 11.3. Termination for Convenience. BDT may terminate these Terms at any time for convenience upon written notice to Distributor, provided that BDT will issue Distributor a pro-rata refund of any pre-paid, unused fees for Distributor’s currently active Subscriptions. Distributor may terminate these Terms at any time upon written notice to BDT if it has no active Subscriptions.
  • 11.4. Effect of Termination. Upon expiration or termination of these Terms, for any reason, the Parties agree that: (a) all active Subscription Periods will immediately terminate; (b) Distributor’s rights to the Services, Documentation, and other BDT Technology will immediately terminate; (c) all Stores will be deactivated and removed from the internet; and (d) each Party will return to the other Party (or upon the other Party’s request, destroy) all Confidential Information of the other Party in its possession or control.
  • 11.5. Transition of Stores. Notwithstanding anything to the contrary, if this Agreement is terminated for Distributor’s breach, BDT will have the right, but not the obligation, to contact the individual End Users for purposes of facilitating the transfer of their Stores to another distributor on the BDT network in order to maintain Store continuity. If BDT exercises its rights under this Section 11.5, Distributor will have no claim against BDT, and BDT will no liability, for transitioning any End Users to another distributor using the Services.
  • 11.6. Survival. The following Sections will survive any termination or expiration of these Terms: 3.3, 3.4, 3.6, 4.3, 4.4, 4.5, 4.7, 6.3, 8.5, 8.6, 9, 11.4, 11.5, 11.6, 12, 13.4, 13.5, 13.6, 14, 15, 18, and 19.

12. Confidentiality

  • 12.1. Confidential Information. "Confidential Information" means any information disclosed by one Party (the "Disclosing Party") to the other Party (the "Receiving Party"), directly or indirectly, in writing, orally, or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, and equipment), that is designated by the Disclosing Party as confidential or proprietary, that reasonably appears to be confidential due to the nature of the information or circumstances of disclosure, or that is customarily considered confidential between business parties. "Confidential Information" may also include information disclosed to the Disclosing Party by third-parties. For clarity, Distributor Data is the Confidential Information of Distributor and Usage Data is the Confidential Information of BDT.
  • 12.2. Exclusions. The confidentiality and non-use obligations under this Section 12 will not apply to any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (b) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (c) is already in the possession of the Receiving Party, without restriction, at the time of disclosure by the Disclosing Party; (d) is obtained by the Receiving Party from a third-party without a breach of the third-party’s obligations of confidentiality; or (e) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
  • 12.3. Non-Use and Non-Disclosure. Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose except to exercise its rights and perform its obligations under these Terms. The Receiving Party will not disclose any Confidential Information of the Disclosing Party to third-parties or to Receiving Party’s employees, except to those employees of the Receiving Party with a need to know. Receiving Party will not reverse engineer, disassemble, or decompile any prototype, software or other tangible objects which embody the Disclosing Party’s Confidential Information. Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law so long as the Receiving Party gives the Disclosing Party prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protection the information from public disclosure.
  • 12.4. Maintenance of Confidentiality. Receiving Party will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the Disclosing Party. Without limiting the foregoing, Receiving Party will take at least those measures that it takes to protect its own similar Confidential Information (but in no event less than a reasonable degree of care) and will ensure that its employees who have access to Confidential Information of Disclosing Party have signed a non-use and non-disclosure agreement in content similar to the provisions of this Section 12 prior to any disclosure of Disclosing Party’s Confidential Information to those employees.
  • 12.5. Return of Materials. Upon the termination of these Terms, Receiving Party will deliver to the Disclosing Party or, at the Disclosing Party’s election, destroy all of the Disclosing Party’s Confidential Information that it may have in its possession or control.
  • 12.6. Remedies. Each Party acknowledges that any violation or threatened violation of this Section 12 may cause irreparable injury to the other Party, entitling the other Party to seek injunctive relief in addition to all legal remedies.

13. Warranties and Disclaimer

  • 13.1. Mutual Warranties. Each Party represents and warrants to the other that: (a) these Terms have been duly executed and delivered and constitutes a valid and binding agreement enforceable against that Party in accordance with its terms; and (b) no authorization or approval from any third-party is required in connection with that Party’s execution, delivery, or performance of these Terms.
  • 13.2. BDT Performance Warranties. BDT represents and warrants to Distributor during the Term that the Services will be materially as described in the Documentation and BDT will not materially decrease the overall functionality of the Services during the applicable Subscription Period (the "Performance Warranty").
  • 13.3. Remedies for BDT Warranties. BDT will use reasonable efforts to correct a verified breach of the Performance Warranty reported by Distributor. If BDT fails to do so within 60 days after Distributor’s warranty report, then either Party may terminate these Terms, in which case BDT will refund to Distributor any pre-paid, unused fees for the terminated portion of the Subscription Period in which the breach of the Performance Warranty occurred. To receive these remedies, Distributor must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Services. The procedures in this Section 13.3 are Distributor’s exclusive remedies and BDT’s sole liability for breach of the Performance Warranty.
  • 13.4. Distributor Additional Warranties. Distributor represents and warrants to BDT that: (a) it will use the Services in compliance with all applicable laws, regulations, and statutes; (b) it has all necessary rights, licenses, consents, and authorizations to provide the Distributor Data, Store Content, and Branding Features to BDT for the purposes described in these Terms; (c) it is authorized to do business in each jurisdiction it operates, including, without limitation, in connection with the manufacture and fulfillment of Products through Stores; and (d) its operation of the Stores will not infringe, violate, or misappropriate the intellectual property rights of any third-person.
  • 13.5. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 13, BDT MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. BDT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, AND ACCURACY. BDT DOES NOT WARRANT THAT USE OF THE SERVICES WILL ACHIEVE ANY PARTICULAR RESULT OR OUTCOME FOR DISTRIBUTOR. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, BDT DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. THE WARRANTIES IN MADE BY BDT IN THIS SECTION 13 DO NOT APPLY TO ANY THIRD-PARTY TECHNOLOGY.
  • 13.6. Beta Services. Distributor may choose to use Beta Services in its sole discretion. Notwithstanding anything to the contrary in this Agreement or otherwise: (a) Beta Services may not be supported and may be changed or terminated at any time without notice; (b) Beta Services may not be as reliable or available as the Services; (c) Beta Services have not been subjected to the same security requirements, measures, and auditing as the Services; (d) Beta Services constitute BDT’s Confidential Information; and (e) BETA SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY, INDEMNITY OR SUPPORT AND BDT’S LIABILITY FOR BETA SERVICES WILL NOT EXCEED FIFTY DOLLARS (U.S. $50).

14. Indemnification

  • 14.1. BDT Indemnification. Subject to the terms and conditions of this Agreement, BDT will indemnify, defend and hold Distributor harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, the costs of enforcing any right to indemnification under these Terms (collectively, "Losses"), incurred by Distributor, relating to any claim, lawsuit, or legal action ("Claim") of a third-party alleging that the Services infringe, misappropriate, or otherwise violate any U.S. patent or copyright of a third-party.
  • 14.2. Exceptions to BDT’s Indemnification Obligations. Notwithstanding anything to the contrary in this Agreement, BDT is not obligated to indemnify or defend Distributor against any Claim under Section 14.1 if that Claim or corresponding Losses arise out of or result from: (a) Store Content, Distributor Data, any Branding Features, or other materials featured on or used in connection with Stores that is not provided by BDT under these Terms; (b) any unauthorized use or modification of the Services; or (c) any combination of the Services or any Stores with any systems, software, or technology not contemplated by this Agreement (if the infringement would not exist but for that combination.
  • 14.3. Distributor Indemnification. Subject to the terms and conditions of this Agreement, Distributor will indemnify, defend and hold harmless BDT, its affiliates, and each of their employees, officers, and agents (collectively, the "BDT Indemnified Parties") from and against any and all Losses incurred by a BDT Indemnified Party relating to or arising from any Claim of a third-party: (a) alleging that any Store Content, Branding Features, or Distributor Data infringes, misappropriates, or otherwise violates the intellectual property rights of any third-party; (b) arising from any dispute with an End User or Visitor, including any dispute under an End User Contract or under the QBOD Terms; (c) alleging any defect with any Product or any injury, damages, or death caused by the use of any Product; or (d) any material breach of these Terms.

15. Limitations of Liability

  • 15.1. Disclaimer of Consequential Damages. EXCEPT FOR LIABILITIES ARISING FROM A PARTY’S: (A) INDEMNIFICATION OBLIGATIONS; (B) BREACH OF SECTION 12 (CONFIDENTIAL INFORMATION), EXCLUDING BREACHES RELATED TO DISTRIBUTOR DATA; OR (C) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, OR INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.
  • 15.2. Monetary Cap on Direct Damages. EXCEPT FOR LIABILITIES ARISING FROM A PARTY’S: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS; OR (B) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EITHER PARTY’S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING WARRANTY CLAIMS) WILL NOT EXCEED IN AGGREGATE THE AMOUNT PAID OR PAYABLE BY DISTRIBUTOR TO BDT PURSUANT TO THESE TERMS DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE APPLICABLE CLAIM GIVING RISE TO THE LIABILITY AROSE UNDER THESE TERMS.
  • 15.3. Independent Allocations of Risk. EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY BDT TO DISTRIBUTOR AND 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 THE AGREEMENT AND WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THE LIMITATIONS IN THIS SECTION 15.3 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THE AGREEMENT.

16. Modification of Terms. BDT may, from time to time, modify these Terms. For material modifications, BDT will provide Distributor written notice of the modifications, and the modified Terms will not be effective until the next Subscription Billing Date occurring after the expiration of 30 days from when notice of the revised Terms was provided. If Distributor does not agree with the revised Terms, Distributor must cancel all Subscriptions to Stores and terminate these Terms prior to modified Terms going into effect. Notwithstanding the foregoing, if Distributor has been provided notice of modified Terms, and Distributor enters into a new Order referencing those Terms, those modified Terms become immediately effective. Further, if Distributor has no active Stores, and BDT provides notice of modifications to these Terms, those modifications will become effective on the earlier of: (a) the next Order entered into by Distributor; or (b) 30 days.

17. Insurance

  • 17.1. Required Coverages. During the Term, Distributor will obtain and maintain insurance in the types and minimum amounts outlined below or (if greater) as requested by applicable law:

    Insurance Type & Minimum Coverage Limits
    Commercial General Liability - $1,000,000 each occurrence
    $1,000,000 - personal and advertising injury
    $2,000,000 - general aggregate
    $5,000,000 - products and completed operations aggregate

    Workers Compensation and Employer’s Liability
    In accordance with the laws of the country, state, province, or territory exercising jurisdiction over employees, or $500,000 per employee, whichever is greater.
  • 17.2. Additional Insurance Terms. Subject to Distributor’s right to self-insure coverage, insurance must be issued by insurance companies with a minimum A.M. best rated of A-VII. Upon BDT's request, Distributor will provide BDT with a certificate of insurance evidencing the insurance coverage specified in this Section 17. The certificate of insurance will name BDT as an additional insured and loss payee. Distributor will provide BDT with 30 days' advance written notice in the event of a cancellation or material change in these insurance policies. Distributor waives and Distributor will cause its insurers to waive, any right of subrogation or other recovery against BDT, its affiliates, and their insurers.

18. Fulfilment Agreement. BDT may provide certain inventory and warehousing services to Distributor related to its operation of the Stores pursuant to a separate written agreement (a "Fulfillment Agreement"). The Fulfillment Agreement will be a separate agreement between the Parties that will not modify or supersede these Terms. Further, termination of the Fulfillment Agreement will not, and will not be construed to, terminate these Terms. In the absence of a Fulfillment Agreement, Distributor is solely responsible for warehousing, shipping, fulfilling Visitor Orders, processing returns, and otherwise handling all aspects of Product fulfillment in connection with the operation of the Stores.

19. Miscellaneous

  • 19.1. Independent Contractors. The relationship of the Parties established by these Terms is that of independent contractors, and nothing contained in these Terms should be construed to give either Party the power to: (a) act as an agent; or (b) direct or control the day-to-day activities of the other.
  • 19.2. Non-Assignability. These Terms may not be assigned by either Party without the prior written consent of the other Party, except that either Party may assign these Terms to a successor in connection with a merger, acquisition, change of control, or sale of all or substantially all of its equity or assets. Any purported assignment in violation of this Section 19.2 is void. Subject to the foregoing, these Terms will be binding upon and inure to the benefit of the Parties and their successors and assigns.
  • 19.3. Governing Law; Jurisdiction. These Terms are governed by and construed in accordance with the laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule. Any disputes arising from or related to these Terms will be instituted exclusively in the state and federal courts located in Dane County, Wisconsin, and each Party irrevocably submits to the exclusive jurisdiction of those courts in any applicable suit, action, or proceeding.
  • 19.4. Notices. BDT may give general notices related to the Services that are applicable to all customers by email or through the Services. All other notices required to be sent under these Terms will be in writing and will be effective upon: (i) personal delivery, or (ii) the second business day after mailing, in each case addressed as follows: if to BDT at 920 Industrial Drive, West Salem, WI 54669 to the attention of Legal Department, and, if to Distributor, to Distributor’s physical or e-mail address on record in BDT’s account information, or to any other address as the Parties may specify from time to time by written notice to the other Party.
  • 19.5. Subcontractors. BDT is permitted to use subcontractors to perform any part of its obligations under these Terms, but BDT remains responsible for any action or inaction by those subcontractors that, if it were attributable to BDT, would be a breach of these Terms.
  • 19.6. Force Majeure. Performance of either Party (except for Distributor’s inability to pay applicable fees) will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party.
  • 19.7. Export Compliance. Distributor will comply with all relevant U.S. and foreign export and import laws in using the Services and other materials received from BDT in connection with these Terms. Distributor: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in a country that is subject to a U.S. government embargo; (b) agrees not to access or use the Services in violation of any U.S. export embargo, prohibition, or restriction, and (c) will not submit any Distributor Data or other information to BDT or the Services that is controlled under the U.S. International Traffic in Arms Regulations.
  • 19.8. Government Rights. To the extent applicable, the Services is "commercial computer software" or a "commercial item" for purposes of FAR 12.212 for and DFARS 227.7202. Use, reproduction, release, modification, disclosure or transfer of the Services is governed solely by these Terms, and all other use is prohibited.
  • 19.9. Waiver and Severability. The waiver by either Party of any breach of these Terms does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation under these Terms will not be a waiver of that Party’s right to demand strict compliance in the future. If any part of these Terms are unenforceable, the remaining portions of the Agreement will remain in full force and effect.
  • 19.10. Entire Agreement. These Terms are the final and complete expression of all agreements between these Parties and supersedes all previous oral and written agreements regarding these matters.
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