Latest Update: March 10th, 2020
These Terms of Service along with any Order Forms, as well as the documents linked herein (collectively the “Agreement”), govern your (and the legal entity you represent, the “Customer”) use of all services and software (the “Service”) provided by Burt (“Burt”).
In the event of a conflict between these Terms of Service and any Order Form that outlines additional terms between the parties (“Order Form”), these Terms of Service shall control, unless the Order Form expressly states otherwise.
Subject to all terms and conditions of the Agreement, during the term of this Agreement, Customer is granted the right to access and use the Service for Customer’s internal business purposes and to allow Customer’s employees and contractors (each, an “Authorized User”) to access and use the Service on Customer’s behalf. All access to and use of the Service by Customer, or access to and use of the Service on Customer’s behalf by any Authorized User, is non-exclusive, non-transferable, and non-sublicensable. Customer will be provided with an account through which Customer may enable Authorized Users to access the Service. Customer will be permitted to establish user identifications and passwords through which Authorized Users may access the Service through Customer’s account (each such user identification and password, a “User ID”). Each User ID is issued to a specific Authorized User and each User ID is personal in nature to that Authorized User and may be used only by that Authorized User. Any act or omission by any Authorized User, which, if it were an act or omission of Customer would be a breach of this Agreement, shall be deemed to be a breach of this Agreement by Customer. Customer will ensure the security and confidentiality of each User ID and will use commercially reasonable efforts to prevent unauthorized access to or use of the Service. Customer will notify Burt in writing promptly upon becoming aware of any such unauthorized access or use of the Service or if any User ID is lost, stolen, or otherwise compromised. Customer shall be responsible for all costs, fees, liabilities, or damages incurred through any access to or use of the Service through Customer’s account. Customer will be solely responsible, at Customer’s own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for Customer and each Authorized User to connect to, access, and use the Service.
Customer acknowledges that the Service, and the software, proprietary tools, and other technology used by or on behalf of Burt to provide the Service, and their structure, organization, and underlying data, information, and source code (collectively, the “Technology”), constitute valuable trade secrets of Burt and its licensors. Customer will not, and will not permit any Authorized User or other third party to: (a) access or use the Service or the Technology except as expressly permitted by this Agreement; (b) access or use the Technology, in whole or in part, except in connection with the Service, as expressly provided in this Agreement; (c) use the Service or the Technology in any unlawful or illegal manner or in any other manner that could damage, disable, overburden or impair the Service or the Technology; (d) alter, modify, reproduce, create derivative works of the Service or the Technology; (e) distribute, sell, resell, subcontract, lend, loan, lease, license, sublicense or transfer any of Customer’s rights to access or use the Service or the Technology, including, without limitation, by providing outsourcing, service bureau, hosting, application service provider or on-line services to any third party, or otherwise make the Service or any Technology available to any third party except for Authorized Users as provided in this Agreement; or (f) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Service or the Technology.
(a) Termination For Cause. Either party may terminate this Agreement immediately upon written notice to the other party if the other party: (a) materially breaches this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of the breach from the other party; (b) materially breaches this Agreement in a manner that cannot be remedied; or (c) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets, or ceases to operate in the ordinary course of business.
(b) Suspension. Without limiting Burt’s right to terminate this Agreement, Burt may suspend Customer’s (and all Authorized Users’) access to the Service upon prior written notice to Customer following a material breach of this Agreement, if deemed reasonably necessary by Burt to prevent any damage, injury, or harm to the Service, Burt, any Authorized User, or any other Burt customer or user of the Service.
(c) Termination without an Order Form. If a signed Order Form exists between the parties, the term therein shall apply. In case of a demo or trial account or similar without an Order Form, Burt may terminate the service at its sole discretion without notice.
(d) Effect of Termination. Upon termination or expiration of this Agreement for any reason: (i) Burt shall cease providing access to the Service; (ii) all rights and subscriptions granted to Customer under this Agreement will terminate; (iii) Customer will immediately cease all access to and use of the Service; (iv) all Fees and other amounts then owed by Customer under this Agreement will become immediately due and payable to Burt; (v) Customer will immediately destroy any User IDs, and Burt Confidential Information (as defined below) then in Customer’s possession or control, provided that Customer may maintain all Customer Data; and (vi) Burt will delete the Customer Data as specified in Section 5(b) (Data Retention). The following Sections will survive termination or expiration of this Agreement for any reason: Section 4 (Intellectual Property Ownership), Section 5(a) (Customer Data), Section 6(c) (Disclaimer), Section 7 (Indemnification), Section 8 (Limitation of Liability), Section 9 (Confidentiality), Section 10 (Contract Entity and Governing Law), and Section 14 (General Terms).
(a) Ownership of the Service and the Technology. Burt retains all right, title and interest in and to the Service, the Technology, and any other invention, work or other matter that was or is created by or for Burt, together with all intellectual property rights relating to the foregoing (collectively, the “Burt Property”). Customer acknowledges that Customer is not receiving any ownership interest in or to any Burt Property, and no right or license is granted to Customer to use any Burt Property apart from Customer’s limited rights expressly set forth in this Agreement. The Burt names and logos, and the names and logos associated with the Service, are trademarks of Burt (or its third party providers), and no right or license is granted to Customer to use them. Customer will not remove or alter any proprietary rights legend on the Service or the Technology.
(b) Professional Services and Work Product. Customer may from time to time request that Burt performs certain customization or other professional services relating to the Service (such additional services are referred to herein as the “Professional Services”). The scope of all Professional Services will be detailed in one or more Order Forms signed by an authorized representative of each party. Unless otherwise agreed in writing, all deliverables (the “Work Product”) will become an integral part inseparable from the Burt Property, and as such shall belong to Burt.
(c) Feedback. If Customer or any Authorized User provides any feedback, suggestions or recommendations relating to the Service or the Technology (“Feedback”), Burt shall be free to use such Feedback in its sole discretion without any obligations of any kind to Customer or any Authorized User, and Burt shall have full ownership of any improvement, modification, or derivative work of the Software or the Technology, or any new product or service, that is created using such Feedback. Any Feedback provided by Customer to Burt is provided “as is” and without any warranty of any kind. Burt uses any Feedback at its own risk. Burt will not identify Customer as the source of any Feedback.
(a) Customer Data. Customer will be solely responsible for all data and other content that Customer or any Authorized User or any third party service may provide to Burt (“Customer Data”) and for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer grants to Burt all rights and licenses in and to Customer Data necessary for Burt to provide the Service, with the right to sublicense this right to Burt’s service providers solely for use in connection with the provision of services to Burt relating to the Service. As between the parties, Customer owns and shall retain all of Customer’s rights in and to all Customer Data. Customer represents, warrants, and covenants that: (i) none of Customer Data, nor the provision thereof by Customer violates any of Customer’s privacy policies, any intellectual property rights or other rights of any Authorized User or third-party, or any applicable law; (ii) Customer has all necessary right, title, interest and consent necessary to allow Burt to use Customer Data as set forth in this Agreement; (iii) the Customer Data does not contain viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents, or programs; (iv) the Customer Data is reasonably accurate and complete; (v) to the best of Customer’s knowledge, the Customer Data will not interfere with or disrupt or corrupt the integrity, accuracy, or performance of the Service; and (vi) the Customer Data is not threatening, libelous, or otherwise unlawful or illegal. Customer remains solely and entirely responsible for obtaining all rights, authorizations, approvals, permissions, and consents necessary for Burt to receive, maintain, process, and use all Customer Data as set forth herein.
(b) Data Retention. Customer Data shall be stored on the Service during the Term and for a period of sixty (60) days following expiration or earlier termination of the Term, or as otherwise required by applicable law (the “Data Retention Period”). If Customer provides Burt with written request within five (5) days of the date of expiration or earlier termination of the Term (the “Request Period”), Burt will provide Customer with an export of the Customer Data in a machine-readable format. If Customer requires an export of the Customer Data, it must provide Burt with written notice within the Request Period. After the Data Retention Period, Burt will have no obligation to maintain any Customer Data, and all imported data and user generated content will be purged or deleted in accordance with system specific retention rules. Burt shall have no responsibility or liability with respect to any Customer Data deleted or purged by the end of the Data Retention Period.
(c) Data Security. In addition to the confidentiality obligations set forth below, Burt shall protect the Customer Data in accordance with the from time to time current information security policy. Burt continuously works to improve its security and follow current trends and developments in this field, as such this policy will be frequently updated. Notwithstanding the foregoing, Customer shall be solely responsible for any Customer Data security breach that occurs as a result of (i) Customer’s failure to maintain the security and confidentiality of each User ID, (ii) Customer’s failure to use commercially reasonable efforts to prevent unauthorized access to or use of the Service, or (iii) any other act or omission of Customer. At all times will data covered by the European Union General Data Protection Regulation (“GDPR”) be processed in accordance with article 32 therein.
(e) Aggregate Data. Burt may monitor usage and gather statistics and general information from all customers (“Aggregate Data”). Burt may use Aggregate Data to improve its Services and Software. Burt may also use Aggregate Data for marketing purposes. No Customer Data, nor anything identifying any customer, nor any Personal Information of any kind, will be present in Aggregate Data disclosed to any third party.
(a) General. Each party represents, warrants, and covenants to the other party that it has and will continue to have during the term hereof, all rights, power, and authority necessary to enter into this Agreement and perform all of its obligations under this Agreement.
(b) Performance. Burt represents and warrants to Customer that (i) it will use commercially reasonable efforts to maintain and verify that the Service operates as specified in this Agreement; (ii) the Services as provided to Customer will not infringe upon any third party copyright, patent, trademark, trade name, trade secret or other proprietary right; (iii) it will comply with all applicable laws, rules and regulations, including privacy and data security laws, rules, regulations during the Term; and (iv) the Services will be free of any software disabling devices or internal controls, including, without limitation, time bombs, viruses, or other devices of similar nature.
(c) Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE AND THE TECHNOLOGY ARE PROVIDED TO CUSTOMER STRICTLY “AS IS” AND “AS AVAILABLE” AND BURT AND ITS PROVIDERS EXPRESSLY DISCLAIM, AND CUSTOMER DISCLAIMS ANY RELIANCE ON, ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD THERETO OR TO ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AVAILABILITY OR ERROR-FREE OPERATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BURT, ITS EMPLOYEES, PROVIDERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.
(a) General. Each party (the “Indemnifying Party”) will defend the other party and its officers, directors, employees, and agents (its “Related Parties”) from and against any claim, allegation or action (each, an “Action”) brought by a third party against the other party or one of its Related Parties to the extent relating to, resulting from, or arising out of the gross negligence or willful misconduct of the Indemnifying Party. The Indemnifying Party will further pay those losses, liabilities, damages, fees, expenses, and costs (including reasonable attorneys' fees and court costs) (“Losses”) finally awarded against the other party or one of its Related Parties in any such Action or those Losses agreed to in a monetary settlement of such Action, as applicable.
(b) Indemnity by Burt. Burt will defend Customer from and against any Action brought by a third party against Customer or one of its Related Parties that the use by Customer or any Authorized User of the Service in accordance with the terms of this Agreement infringes any third party intellectual property right. Burt will pay those Losses finally awarded against Customer of its Related Parties in any such Action or those Losses agreed to in a monetary settlement of such Action, as applicable. If Customer is, or Burt reasonably believes Customer may be, enjoined from using the Service due to an Action covered by this Section, Burt will either procure the right for Customer to continue using the Service, replace or modify the Service so that it becomes non-infringing, or terminate this Agreement and provide Customer a refund of any pre-paid amounts applicable to the Service (if any). Burt will have no obligation under this Section or otherwise with respect to any Action or Losses that are caused by: (a) any use of the Service other than by Customer or an Authorized User; (b) any use of the Service that is not in accordance with this Agreement; (c) any products, equipment, services, processes, software, data or information not supplied by Burt; or (d) any modification of or enhancement to the Service other than by Burt. THIS SECTION CONSTITUTES BURT’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY OTHER RIGHTS RELATING TO THE SERVICE.
(c) Indemnity by Customer. Customer will defend Burt and its Related Parties from and against any Action brought by a third party against Burt or one of its Related Parties to the extent relating to, resulting from, or arising out of any: (a) breach by Customer or any Authorized User of this Agreement; (b) any Customer Data or Customer Materials, except in the event that a breach by Burt of this Agreement caused such Action. Customer will pay those Losses finally awarded against Burt in any such Action or those Losses agreed to in a monetary settlement of such Action, as applicable.
(d) Conditions. All obligations of each Indemnifying Party under this Agreement are conditioned upon the party seeking defense or indemnification (the “Indemnified Party”) providing the Indemnifying Party with: (a) prompt written notice of any such claim for indemnification or defense after receiving written notice thereof, provided, however, that failure to provide such written notice shall not relieve the Indemnifying Party of its obligations hereunder, unless it is materially prejudiced by such failure; (b) sole control over the defense and settlement of such claim, provided that any settlement that will require the Indemnified Party to assume any liability other than the payment of monies will be subject to the Indemnified Party’s prior written consent; and (c) reasonable assistance in such defense or settlement (at the Indemnifying Party’s expense).
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE SERVICES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER OF (i) THE FEES PAID BY CUSTOMER TO BURT HEREUNDER IN THE 12 MONTH PERIOD PRECEDING THE CLAIM; OR (ii) $250,000; PROVIDED, HOWEVER THAT THIS LIABILITY CAP WILL NOT APPLY TO DAMAGES ARISING FROM (i) A PARTY’S INDEMNITY OBLIGATIONS; OR (ii) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. CUSTOMER AGREES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT BURT WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, A PARTY’S LIABILITY SHALL NOT EXCEED THE MAXIMUM EXTENT PERMITTED BY LAW.
(a) Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, business and marketing plans, technology and technical information, product designs, and business processes. Without limiting the foregoing, Burt’s Confidential Information includes the Service, the Technology and all related code and other technology associated therewith. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without access to or use of the Confidential Information; (iv) is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party.
(b) Confidentiality Obligations. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose other than as necessary to perform its obligations or exercise its rights under this Agreement, except with the Disclosing Party's prior written permission. The Receiving Party shall protect the confidentiality of the Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information of similar kind, but in no event shall the Receiving Party exercise less than reasonable care in protecting such Confidential Information. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
(c) Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 9, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate. The Disclosing Party shall not be required to post a bond or other security in connection with the granting of any such relief.
The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws described below depending on Customers physical address.
If Customer is situated in North or South America, this contract is entered with Burt Americas Inc. and will be governed by the laws of the State of New York. Each party agrees that it will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal or state court located in New York, New York, and each party irrevocably submits to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by the other party.
If Customer is situated in the European Union or the rest of the world, this contract is entered with Burt Intelligence AB, and will be governed by the laws of Sweden. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC Institute”). The language to be used in the arbitral proceedings shall be English unless differently mutually agreed. The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC Institute, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its discretion, that the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.
Neither party will be held responsible for failure or delay in the performance of any obligation under this Agreement, with the exception of the obligation to pay Fees, if such failure or delay is due to acts of God or governmental authority, war, terrorism, strikes, boycotts, labor disputes, fire or other loss of facilities, accident or any other cause beyond its control (each, a “Force Majeure”). If the performance of any obligation under this Agreement by either party is prevented, restricted or interfered with by reason of a Force Majeure event, the party whose performance is so affected, upon giving prompt written notice to the other party, will be excused from such performance to the extent of such Force Majeure event, provided that the party so affected will take all reasonable steps to avoid or remove such causes of nonperformance and will continue performance hereunder with dispatch whenever such causes are removed.
Unless otherwise stated in this Agreement, all notices or other communications required under this Agreement shall be in writing and addressed to the applicable party in accordance with the contact information set forth in the Order Form or as set forth below, or as subsequently changed by a notice provided in compliance with this Section 12, and shall be deemed given upon actual receipt by the addressee when sent to the address specified below:
If to Burt:
Burt Americas Inc.
110 E 25th Street, New York, NY 10010
Attn: General Counsel
Burt Intelligence AB
Kungsportsavenyen 21, 411 36, Gothenburg, Sweden
Attn: General Counsel
If to Customer:
The address specified in an Order Form, or specified in the account information of the Service, electronic notices through the Service or email to your e-mail address(es) on record in the account information. For this purpose, Customer needs to keep account information accurate and up to date.
Burt may Amend or change those Terms of Service at any time. However, if Burt modifies the Agreement during Customer’s Subscription Term, the modified version will take effect upon Customer’s next Subscription Term renewal.
This is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Customer’s access to and use of the Service. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. Neither this Agreement nor any rights or obligations of Customer hereunder may be assigned, delegated, or transferred by Customer (whether in whole or in part, including by sale, merger, consolidation, or operation of law or otherwise) without the prior written approval of Burt. Any assignment in violation of the foregoing will be null and void. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.