Last Updated – July 20, 2018
THESE TERMS OF SERVICE (the “Terms”) governs how you (“Client”) may use the Platform provided by Bester Capital Media, a subsidiary of Bester Capital Investments, headquartered in Dubai, UAE, with offices in Europe and Asia (“Company”). Client and Company are each a “Party” and collectively the “Parties”. By registering or using the Platform or the Websites you agree to be bound by the Terms. If you are using the Platform or the Websites on behalf of an organization, you are agreeing to the Terms for that organization (in which event, “you”, “your” or “Client” will refer to that organization) and promising to the Company that you have the authority to bind that organization to the Terms unless that organization has a separate written contract in effect with us (an “Agreement”), in which event the Terms and the Agreement will govern your use of the Platform; provided that if there is any conflict between the Terms and an Agreement, the provisions of the Agreement shall control.
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE PLATFORM OR WEBSITES.
We may, in our sole discretion, modify the Terms of Service via email or by posting notice on any part of the Platform or the Websites. The “Last Updated” date at the top the Terms indicates when the latest modifications were made to the Terms. By continuing to access and use the Platform or the Websites, you agree to any such modifications. In addition, when using particular services or features on the Platform or the Websites, you will be subject to any posted guidelines or policies applicable to such services or features that may be posted from time to time, including but not limited to the Privacy Policy as noted below. All such guidelines or policies are hereby incorporated by reference into these Terms.
If you have any comments or questions regarding the Terms, or wish to report any violation of the Terms, you may contact us at info@bestercapitalmedia.com.
Capitalized terms used but not defined elsewhere in the Terms shall have the following definitions:
1.1 “Affiliate” means, with respect to any Party, any other party directly or indirectly controlling,
controlled by
or under common control with such Party.
1.2 “Client Content” means the digital, audio-visual materials as made available by Client to Company, including,
but not limited to: data, data feeds and metadata as may be set forth
on any invoice or subscription order.
1.3 “Intellectual Property Rights” means all intellectual property and proprietary rights of any nature or kind,
whether protected, created, or arising under any applicable law, and
all worldwide common law, statutory, and other rights in, arising out of, or associated therewith, including but
not limited to trademarks, copyrights, patents, domain names, and trade secrets.
1.4 “Platform” means the certain technology and platform provided by the Company which allows companies the
ability to analyze user behavior
across mobile applications and websites and engage them with personalized, contextual messaging. 1.5 “Websites”
means any domain or website provided by the Company, whether or not used for the Platform.
2.1 License Grant. In accordance with the terms herein, Company grants to Client a limited, non-exclusive,
non-transferable license during the Term (as defined in Section 9.1) to use the Platform incorporated with Client
Content.
2.2 Scope of Use. Except in accordance with the terms herein or as reasonably required for Client to
avail itself of the intended functionality of the Platform as contemplated in a form of invoice or subscription
order, if any, Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise
attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant
to the Platform or any software, documentation or data related to Platform; modify, translate, or create
derivative works based on the Platform (except to the extent expressly permitted by Company or authorized within
the Platform); use the Platform otherwise for the benefit of a third party; or remove any proprietary notices or
labels.
2.3 Company Policy; Applicable Law. Client represents, covenants, and warrants that Client will use the
Platform only in compliance with Company’s standard published policies then in effect, including without
limitation the Company’s Privacy Policy as found at https://bestercapitalmedia.com/privacy-policy (the “Policy”).
Client additionally covenants and warrants that its use of the Platform will be in compliance with all applicable
laws and regulations, including applicable export laws. In the event of a conflict between the Policy and
specifications set forth in an invoice or subscription order, if any, the terms of the applicable invoice or
subscription order shall control. Client hereby agrees to indemnify and hold harmless Company against any
damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees)
in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from
Client’s use of the Platform. Although Company has no obligation to monitor Client’s use of the Platform, Company
may do so and may prohibit any use of the Platform it believes may be (or alleged to be) in violation of the
foregoing.
3.1 Onboarding. Company shall onboard Client to the Platform and provide the Platform per the feature
specifications, if any, in the applicable form of invoice or subscription order, if any. Parties shall provide
each other with reasonable assistance, access, and information in order to initiate Client’s use of the Platform.
Client’s using any free or self-service offerings will have access to documentation and community forums to
assist in their onboarding.
3.2 Cooperation. Both Company and Client acknowledge that a successful integration of Client Content and the
Platform, including any modifications thereto, shall require their full and mutual good
faith cooperation, and Client and Company acknowledge that they shall timely fulfill their responsibilities in
this regard.
3.3 Service Level Terms. Subject to the Terms, Company will use commercially reasonable efforts to
provide Client the Platform. Subject to the terms hereof, Company will provide Client with reasonable technical
support services in accordance with Company’s standard practice. The Company does not make any commitment that
the Platform or the Websites will be available at all times or during any down time (a) caused by outages to any
public Internet backbones, networks or servers, (b) caused by any failures of your equipment, systems or local
access services, (c) for previously scheduled maintenance, (d) caused by any third party vendor or service
provider of the Company, or (e) relating to events beyond the Company’s (or its licensors’ or service provider’s)
control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor
conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where the Company or
its servers are located or co-located.
3.4 Updates. From time to time, the Company may provide upgrades, patches,
enhancements, or fixes for the Platform or the Websites to its users generally without additional charge
(“Updates”), and such Updates will become part of the Platform and/or the Websites, and subject to the Terms
and/or an Agreement. Notwithstanding the foregoing, the Company shall have no obligation under this the Terms or
otherwise to provide any such Updates. You understand that the Company may cease supporting old versions or
releases of the Platform or the Websites at any time in its sole discretion.
3.5 Client Content. All Client Content is the sole responsibility of the person who originated such content. You
acknowledge that all Client
Content transmitted or accessed by you using the Platform or the Websites, is at your own risk and you will be
solely responsible and liable for any damage or loss to you or any other party resulting therefrom. You remain
solely responsible for all Client Content that you transmit in connection with the Platform, and you warrant that
you possess all rights necessary to provide such Client Content. We reserve the right to remove any objectionable
Client Content from the Platform in our sole discretion. You understand that by providing Client Content in
connection with the Platform, you hereby grant us a non-exclusive, worldwide, royalty-freeright to fully exploit
such Client Content (including all related intellectual property rights) in connection with our provision of the
Platform to you.
4.1 Account. You may be required to establish an account in order to use the Platform and/or take advantage of
certain features. If so, you agree to: (a) provide true, accurate, current and complete information about
yourself as prompted by the Platform; and (b) as permitted, maintain and promptly update such information. If you
provide any information that is false, inaccurate or outdated, or Bester Capital Media has reasonable grounds to
suspect that such information is false, inaccurate or outdated, Bester Capital Media has the right to suspend or
terminate your account and prohibit any and all current or future use of the Platform by you. You are responsible
for maintaining the confidentiality of the password and account, and are fully responsible for all activities
that occur under your account. This password is encrypted. We advise against sharing your password with anyone
and if you do lend your password, then you are responsible for any actions taken by anyone you lent your password
to, including indemnifying us for any loss. If you access your account via a third-party site or service, you may
have additional or different sign-in protections via that third-party site or service. You need to prevent
unauthorized access to your account by selecting and protecting your password and/or other sign-in mechanism
appropriately and limiting access to your computer, browser, or mobile device by signing off after you have
finished accessing your account. Your account is meant to be private and you shall not share accounts for any
reason. You agree to immediately notify us of any unauthorized use of your password or account or any other
breach of security. You agree to be responsible for all charges resulting from the use of your account via the
Platform and shall indemnify any losses we incur due to your use or misuse of the Platform, including charges
resulting from any unauthorized use of your account.
4.2 Lawful Use. You agree to use the Platform and the Websites
only for lawful purposes and that you are responsible for your use of and communications and content you may post
via the Platform or the Websites. You agree not to post or transmit any unlawful, infringing, threatening,
harassing, defamatory, vulgar, obscene, profane, indecent, offensive, hateful or otherwise objectionable material
of any kind, including any material that encourages criminal conduct or conduct that would give rise to civil
liability, infringes upon others’ intellectual property rights, impersonates any individual or entity, or
otherwise violates any applicable law. You agree not to use the Platform or the Websites in any manner that
interferes with its normal operation or with any other user’s use of the Platform or the Websites. You may not do
any of the following while accessing or using the Platform or the Websites: (i) access, tamper with, or use
non-public areas of the Websites, our computer systems, or the technical delivery systems of our providers; (ii)
probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or
authentication measures; (iii) access or search or attempt to access or search the Websites by any means other
than through our currently available, published interfaces that are provided by us, unless you have been
specifically allowed to do so in a separate agreement with us; (iv) forge any TCP/IP packet header or any part of
the header information in any email or posting, or in any way use the Platform or the Websites to send altered,
deceptive or false source-identifying information; or (v) interfere with, or disrupt, the access of any user,
host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing
the Platform or the Websites, or otherwise creating an undue burden on the Platform or the Websites. You may not
use manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the
Websites. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of any part of
the Platform or the Websites.
4.3 Access. You further agree that you will not access the Websites by any means
except through the interface provided by Bester Capital Media for access to the Websites. Creating or maintaining
any link from another application to any page at the Websites without the prior authorization of Bester Capital
Media is prohibited. Running or displaying the Websites, or any information or material displayed via the
Websites in frames or through similar means on another website or application without the prior authorization of
Bester Capital Media is prohibited. Any permitted links to the Websites must comply with all applicable laws,
rule and regulations.
4.4 Local Law. Bester Capital Media makes no representation that Materials contained,
described or offered via the Platform or the Websites are accurate, appropriate or available for use in
jurisdictions outside the United States, or that these Terms of Service comply with the laws of any other
country. Visitors who use the Platform or the Websites and reside outside the United States do so on their own
initiative and are responsible for compliance with all applicable law. You agree that you will not access the
Platform or the Websites from any territory where its contents are illegal, and that you, and not the Bester
Capital Media Parties, are responsible for compliance with applicable law.
4.5 Third-Party Sites. Links provided
via the Platform or the Websites to third party websites and services are provided only as a convenience. If you
use these links, you may leave the Platform or the Websites. Bester Capital Media does not control nor endorse
any such third-party websites. You agree that the Bester Capital Media Parties, as defined below, will not be
responsible or liable for any content, goods or services provided by such third-party websites or for your use or
inability to use such third-party websites. You will use such links at your own risk.
Client will pay Company the amounts specified in each form of invoice or subscription order. Company will invoice Client for items set forth in the invoice or subscription order, if any, and Client will pay for invoices issued in any given month and payment must be received by Company thirty (30) days after invoice date, unless the applicable invoice or subscription order contains payment terms that are different. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Platform. Client shall be responsible for all taxes associated with the Platform other than taxes based on Company’s net income. Company may turn off Client access to Platform without notice for any unpaid and due invoices.
6.1 Client Ownership. As between Client and Company, all right, title and interest (including without limitation
all Intellectual Property Rights) in and to Client Content shall be and remain the sole and complete property of
Client. If the development of the Platform results in new derivative works of Client Content that constitute
audio or visual assets, excluding in all cases the Company Materials as defined in Section 6.2 below (“Client
Content Derivative Works”), then all right, title and interest in Client Content Derivative Works (including all
Intellectual Property Rights therein) shall belong to Client and shall be deemed to be Client Content for
purposes of the licenses granted pursuant to the Terms. Company hereby irrevocably and exclusively grants,
transfers and assigns to Client all Intellectual Property Rights that Company has, or may have, in or to Client
Content Derivative Works. With respect to any so-called “moral rights,” exercisable with respect to Client
Content Derivative Works, Company hereby unconditionally waives such rights and the enforcement thereof
.6.2 Company Ownership. As used herein, “Company Materials” means:
a. all materials that were created by Company prior to the date of the Terms including the Platform and the
layout and flow of the Platform, and
b. any other materials created under the scope of the Terms or subsequent to the Terms, excluding those portions
of any of materials which comprise Client Content or Client Content Derivative Works, but including without
limitation:
i. all originally created or licensed audio or visual assets, computer software, code, routines, tools,
application engines, algorithms, inventions and other technology contained in or used by Company in the
development of the Platform; and
ii. the technical and/or maintenance documentation, if any, of or concerning the Platform.
Company shall at all times be and remain, the sole and exclusive owner of the Company Materials and all
Intellectual Property Rights pertaining thereto. Without limiting the generality of the foregoing, nothing in the
Terms shall be deemed to grant or assign to Client any proprietary or ownership interest or Intellectual Property
Rights in or to Platform, the Company Materials or any derivatives of such, other than the license rights
specifically set forth herein.
6.3 Permitted Activity. Notwithstanding the foregoing, Client acknowledges that
Company may develop and distribute software and applications using Company Materials and that nothing in the
Terms shall prevent the foregoing.
6.4 Marks and other Intellectual Property. All trademarks, service marks, trade
names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with any aspect
of the Platform or the Websites are either the property of the Company, its affiliates or licensors. The Company
retains the right to rescind and terminate the limited license granted hereunder at any point, for any reason.
All rights not expressly granted herein by the Company to you are fully reserved by the Company, its advertisers
and licensors. Some of the company and product names, logos, brands, and other trademarks featured or referred to
within the Platform and the Websites may not be owned by us, and are the property of their respective trademark
holders. These trademark holders are not affiliated with, nor do they sponsor or endorse, the Company, the
Platform, the Websites and/or our products and services.
7.1 Confidentiality. In connection with the services provided under the Terms, a Party may, from time to time,
be exposed to and will be furnished with certain information relating to the other Party’s plans for certain
products and services that are confidential (as such is designated or marked by such Party). During the term of
the Terms and for a period of five (5) years thereafter, each Party shall keep confidential and not reveal or
disclose to any third party any of said information, material or data. Each Party will not disclose or make known
to anyone, directly or indirectly, the terms of the Terms. The provisions of this paragraph shall not apply to
information that is or becomes publicly available through no fault of the receiving Party or its representatives,
or information that is required to be disclosed pursuant to a court order or any applicable laws, rules or
regulations.
7.2 Publicity; Credit. Company shall have the ability to issue a press release in connection with
this Agreement and use Client’s logo on the Company website and other marketing materials, subject to the
Client’s approval. Company will work with the Client to get an approval on using their logo on the Company’s
website and other marketing material along with a press release and a case study. These need to the completed
within 6 months of this signed contract. Furthermore, Company has the right to include a branding mark “Powered
by Bester Capital Media (BCM)” in a visible form with a hyperlink to www.bestercapitalmedia.com in the message
body of any supported notification channels such as emails sent from Company as long as the Client remains in the
FREE/Unpaid tier of service.
7.3 Data Collection. In carrying out its obligations and obtaining the benefits under
the Terms, each Party will comply with applicable laws, including applicable privacy laws. Company will not
access or collect any Personal Information except as strictly necessary to perform its obligations under the
Terms (including the collection of Personal Information of Client) or to fulfill any legal requirements. Client
may capture Personal Information and send it to the Platform. “Personal Information” means information provided
by Client or collected by Company under the Terms, which information identifies or can be used to identify,
contact, or locate the person or device to whom that information pertains. Personal Information includes name,
address, phone number, fax number, email address, social security number, or other government issued identifier,
and credit-card information. Additionally, to the extent other information (including a personal profile, unique
identifier, and/or biometric information is associated or combined with Personal Information), then that
information is also Personal Information. Company will not use Personal Information accessed or collected while
performing under the Terms for any purpose other than those expressly permitted by the Terms.
a. Limitations on Disclosure of Personal Information. Company will not share any Personal Information that is
collected or accessed by it while performing under the Terms with any third parties for any reason except as
necessary to carry out its obligations hereunder or as required to comply with law, and only under terms and
conditions substantially similar to those contained in this Section. If Company is served with a court order
compelling disclosure of any Personal Information or with notice of proceedings for such an order, Company shall
(i) give Client reasonable notice prior to such disclosure to allow Client a reasonable opportunity to seek a
protective order or equivalent, and (ii) at Client’s discretion, either assist Client in opposing the order or
provide Client the opportunity to intervene before Company files any response to the order or notice.
b. Protection of Personal Information. Company will take reasonable steps to protect Personal Information in
Company’s possession from unauthorized use, access, disclosure, alteration or destruction. Security measures will
include access controls, encryption and other means, where appropriate.
c. De-Identified Data. Notwithstanding anything herein, Company shall be permitted to create, use, license, sell
or disclose De-Identified Data. “De-Identified Data” shall mean Personal Information (i) for which all
identifiers have been removed such that the data, alone or in combination with other reasonably available data,
cannot be attributed to or associated with or cannot identify any person, and the unauthorized access, use,
disclosure, modification, storage, destruction, or loss of the data would not trigger the application of any
privacy law or any security breach notification law, and (ii) that has been combined with similar data such that
the original data forms a part of a larger data set. Company may retain De-Identified Data.
8.1 Company Representations and Warranties. Company represents, warrants, and undertakes as follows:
a. Company is free to enter into and fully perform the Terms.
b. The entering into of the Terms by Company does not violate any agreements, rights or obligations existing
between Company and any other person, firm or corporation.
c. It will use commercially reasonable efforts to not directly introduce to the Client Content, Websites, or
Platform any virus, worm, Trojan horse, spyware, or other form of malware.
8.2 Client Representations and Warranties. Client represents, warrants, and undertakes as follows:
a. It is free to enter into and fully perform the Terms.
b. The entering into of the Terms by Client does not violate any agreements, rights or obligations existing
between Client and any other person, firm or corporation.
c. It has, and will have through the Term, the right to contract and provide Client Content to Company in
accordance with the terms and conditions of the Terms.
d. It will use commercially reasonable efforts to not directly introduce to the Client Content, Websites, or
Platform any virus, worm, Trojan horse, spyware, or other form of malware.
e. It is of legal age to form a binding contract or has the authority of such legal entity to form a binding
contract; all registration information you submit is accurate and truthful; you will maintain the accuracy of
such information; and you are legally permitted to use and access the Platform and the Websites, and take full
responsibility for the selection and use of and access to the Platform and the Websites.
f. Client Content is owned or adequately licensed by Client and does not, to its knowledge, infringe upon or
violate any copyright, trademark or other proprietary right of any third party.
8.3 Warranty and Disclaimer. YOUR USE OF THE PLATFORM AND THE WEBSITES IS AT YOUR SOLE RISK. THE PLATFORM, THE
WEBSITES AND THE ASSOCIATED MATERIALS AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE, THE COMPANY, ITS PARENT, SUBSIDIARY AND OTHER AFFILIATED
COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY,
THE “BESTER CAPITAL MEDIA PARTIES”), EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE BESTER CAPITAL MEDIA PARTIES MAKE NO
WARRANTY THAT: (I) THE PLATFORM OR THE WEBSITES WILL MEET YOUR REQUIREMENTS; (II) THE PLATFORM OR THE WEBSITES
WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED VIA THE PLATFORM OR
THE WEBSITES WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY AND ALL PRODUCTS, SERVICES, INFORMATION OR
OTHER MATERIAL, INCLUDING ALL MERCHANDISE, GOODS AND SERVICES, OBTAINED OR PURCHASED BY YOU DIRECTLY OR
INDIRECTLY THROUGH THE PLATFORM OR THE WEBSITES WILL MEET YOUR EXPECTATIONS OR NEEDS; AND (V) ANY ERRORS IN THE
PLATFORM OR THE WEBSITES WILL BE CORRECTED.
8.4 Exclusion of Damages. THE BESTER CAPITAL MEDIA PARTIES SHALL NOT
UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO
THE USE OF OR INABILITY TO USE THE PLATFORM, INCLUDING ANY LIABILITY: (I) AS A PUBLISHER OF INFORMATION; (II) FOR
ANY INCORRECT OR INACCURATE INFORMATION OR ANY ‘BUG’ OF THE PLATFORM OR THE WEBSITES; (III) FOR ANY UNAUTHORIZED
ACCESS TO OR DISCLOSURE OF YOUR TRANSMISSIONS OR DATA; (IV) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR
VIA THE PLATFORM OR THE WEBSITES; (V) FOR ANY DISPUTES BETWEEN USERS OF THE PLATFORM OR THE WEBSITES, OR BETWEEN
A USER OF THE PLATFORM OR THE WEBSITES AND A THIRD PARTY; OR (VI) FOR ANY OTHER MATTER RELATING TO THE PLATFORM
OR THE WEBSITES, OR ANY THIRD PARTY. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES
OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON
BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN
INDIVIDUAL ADVISES THE BESTER CAPITAL MEDIA PARTIES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF
LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU. THE
PRODUCTS, INFORMATION AND SERVICES OFFERED ON AND THROUGH THE PLATFORM OR THE WEBSITES WOULD NOT BE PROVIDED TO
YOU WITHOUT SUCH LIMITATIONS.
8.5 Limitation of Liability. NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE
MAXIMUM LIABILITY OF THE BESTER CAPITAL MEDIA PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY
CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE CHARGES PAID BY YOU DIRECTLY TO THE COMPANY VIA THE PLATFORM
OR THE WEBSITES FOR SERVICES PROVIDED SOLELY AND DIRECTLY BY BESTER CAPITAL MEDIA TO YOU IN THE SIX MONTHS PRIOR
TO SUCH CAUSE OR CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR
EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS
MAY NOT APPLY TO YOU. If you are a California resident, you shall and hereby do waive California Civil Code
Section 1542, which says: “A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which, if known by him must have materially
affected his settlement with the debtor.”
8.6 Indemnification. You agree to indemnify, defend and hold harmless
the Bester Capital Media Parties against all claims, demands, causes of action, losses, expenses, damages and
costs (including any reasonable attorneys’ fees), resulting or arising from or relating to your use of the
Platform or the Websites, any activity related to your account by you or any other person permitted by you, any
Client Content that you submit to, post on or transmit through the Platform or the Websites, your breach of the
Terms, your infringement or violation of any rights of another, or termination of your access to the Platform or
the Websites. We reserve the right to assume, at our sole expense, the exclusive defense and control of any such
claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in
the defense of any such claim, action, settlement or compromise negotiations, as requested by us.
9.1 Term of Terms. Subject to earlier termination as provided below, the Terms is for the term as specified in
the applicable form of invoice or subscription order, if any, and if no term is specified, monthly, and shall be
automatically renewed for additional periods of the same duration as the initial term specified in the applicable
form of invoice or subscription order (collectively, the “Term”), unless either Party requests termination at
least thirty (30) days prior to the end of the then-current Term.
9.2 Termination for Breach with a Cure Period.
If either Party materially breaches the Terms, then the non-breaching Party shall provide the other with written
notice of such breach. If such breach is not cured or otherwise resolved within thirty (30) days of delivery of
such written notice, then the non-breaching Party will have the right to immediately terminate the Terms.
9.3 Termination for Breach without a Cure Period. Notwithstanding anything to the contrary in Section 9.1, either
Party shall have the right to terminate the Terms immediately (without any cure period) in the event of any of
the following: (i) a material breach of the confidentiality provisions herein; (ii) the other Party makes an
assignment of all or substantially all of its assets for the benefit of its creditors, if a receiver, trustee,
liquidator or sequestrator of all or substantially all of each Party’s assets is appointed, or if the other Party
discontinues its business, or (iii) the other Party: (A) files a voluntary petition in bankruptcy under the
United States Bankruptcy Code or any successor statute or (B) has an involuntary bankruptcy petition filed
against it, which is not dismissed within ninety (90) days after the filing date.
9.4 Termination for Convenience.
Company may terminate the Terms for convenience, and without cause, upon thirty (30) days prior written notice to
Client; provided that Company will provide a pro rata refund of advanced fees for the Platform.
9.5 Effect of Expiration or Termination. Upon expiration or earlier termination of the Terms, all rights granted to each Party
herein shall forthwith revert to the granting Party, including, but not limited, to the license, with the
following consequences:
a. Any compensation accrued but not paid will become immediately due and payable.
b. Upon termination of the Terms, Client’s right to access and use the Platform shall immediately terminate,
Client shall immediately cease all use of the Platform, and Client shall destroy or return to Company and make no
further use of any proprietary, materials, or other items (and all copies thereof) belonging to Company. Upon any
termination, Company will make all Client Content available to Client for electronic retrieval for a period of
thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Client Content. All sections
of the Terms which by their nature should survive termination will survive termination, including, without
limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of
liability.
10.1 Notice. All notices, requests, demands, approvals, requests for approvals or other communications under the
Terms shall be in writing. Notice will be sufficiently given for all purposes as follows: (i) upon delivery when
personally delivered to the recipient, (ii) upon receipt when mailed by certified mail, return receipt requested
if confirmed by return receipt, (iii) upon delivery when delivered by Federal Express or other recognized
international overnight courier, and (iv) upon receipt when sent by fax with confirmation, provided, however,
that it shall be deemed delivered the next business day if sent on a non-business day or after 5pm San Francisco,
California time on a business day. For the purposes of convenience, notice will be sufficiently given for the
purpose of approvals and requests for approvals, if provided by a Party’s authorized representative to the other
Party’s authorized representative via email. Addresses for the purpose of giving notice may be set forth on the
applicable form of invoice or subscription order. All payments shall be made to such bank accounts or addresses
as may be designated in writing by the Parties from time to time by delivery of notice.
10.2 Merger/Modification.
Each Party acknowledges that it has read the Terms, it understands it, and agrees to be bound by its terms, and
further agrees that this is the complete and exclusive statement of the Terms between the Parties, which
supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the
Parties relating to the Terms. This Terms may not be modified or altered except by written instrument duly
executed by both Parties.
10.3 Governing Law. This Terms shall be governed by and interpreted in accordance with
the laws of the State of California. Parties agree that any litigation arising out of or related to the Terms
must be brought in a state or federal court located in San Francisco, California as the exclusive and mandatory
venue and jurisdiction for any litigation arising out of or related to the Terms. No action arising out of these
Terms or your use of the Platform or the Websites, regardless of form or the basis of the claim, may be brought
by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the
first such cause arose).
10.4 Severability. If any provision of the Terms is invalid under any applicable statute
or rule of law, it is to that extent to be deemed omitted and all other terms and provisions of the Terms shall
nevertheless remain in full force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in
good faith to modify the Terms so as to effectuate the original intent of the Parties as closely as possible in
an acceptable manner in order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
10.5 Assignment by Company. Company may not assign the Terms in
whole or in part, except that Company shall have the right to assign the Terms to an Affiliate, subsidiary or a
third-party acquirer of all or substantially all of the shares and/or assets of such the Company without the
consent of Client.
10.6 Assignment by Client. Client may not assign the Terms in whole or in part, except that
Client shall have the right to assign the Terms to an Affiliate or subsidiary without the consent of Company.
10.7 Waiver. A waiver by either Party of any terms or conditions of the Terms in any instance shall not be deemed or
construed to be a waiver of such term or condition for the future, or of any subsequent breach thereof. All
remedies, rights, undertakings, obligations and agreements contained in the Terms shall be cumulative, and none
of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either
Party.
10.8 Relationship of Parties. The Parties are not employees, agents, partners or joint venturers of each
other. Neither Party shall have the right to enter into any agreement on behalf of the other.
10.9 Headings and Titles. The headings and titles of the Terms are not part of the Terms, but are for convenience only and are not
intended to define, limit or construe the contents of the various sections.
10.10 Entire Terms. The entire
understanding between the Parties hereto relating to the subject matter hereof is contained herein and the
Parties make no warranties, representations or undertakings hereto except as expressly provided herein.
10.11 Survival. Notwithstanding any termination, cancellation or expiration of the Terms, the provisions hereof that
are intended to continue and survive, shall continue and survive, including, but not limited to, Sections 5, 6,
7, 9.5, 9.6 and 10.
10.12 Expenses. Except as otherwise specified in the Terms, all costs and expenses, including
fees and disbursements of counsel, financial advisors and accountants, incurred in connection with the Terms and
the transactions contemplated in the Terms shall be paid by the Party incurring such costs and expenses.
10.13 Copyright Infringement. Those who believe that their copyrighted work has been infringed or are aware of other
infringing material, should contact our Copyright Agent at the address listed below and provide us with the
following information:
a. An electronic or physical signature of a person authorized to act on behalf of the owner of the copyrighted
work that has allegedly been infringed.
b. Identification of the copyrighted work claimed to have been infringed.
c. Information describing where the allegedly infringing material is located on the Platform of Websites.
d. Your address, telephone number, and email address.
e. A written statement by you that you have a good faith belief that the disputed use is not authorized by the
copyright owner, its agent, or the law.
f. A statement by you that the above information in your notification is accurate and that, under penalty of
perjury, you are the copyright owner or authorized to act on the copyright owner’s behalf.
The foregoing information may be emailed to info@bestercapitalmedia.com. Following receipt of the information
listed above, we will remove or disable access to the infringing material and take reasonable steps to notify the
user responsible for posting said material. The posting of infringing copyrighted material may result in the
termination of user privileges of such user.
10.14 Force Majeure. No party shall be liable for a failure or delay
in performing any of its obligations under the Terms if, but only to the extent that, such failure or delay is
due to causes beyond the reasonable control of the affected party, including, but not limited to (1) acts of God;
(2) fire or explosion (except to the extent caused by the negligence or willful misconduct of the affected
party); (3) unusually severe weather; (4) war, invasion, riot, or other civil unrest; (5) governmental laws,
orders, restrictions, actions, embargoes, or blockages; (6) national or regional emergency; and (7) injunctions,
strikes, lockouts, labor trouble, or other industrial disturbances; provided that the party affected shall
promptly notify the other of the force majeure condition and shall exert reasonable efforts to eliminate, cure,
or overcome any such causes and to resume performance of its obligations as soon as practicable.