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PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS BRAND THUNDER PUBLISHER AGREEMENT (THE "AGREEMENT") BEFORE USING THE BRAND THUNDER TECHNOLOGY OR CREATING AN APPLICATION (EACH AS DEFINED BELOW). THIS IS A LEGAL AGREEMENT BETWEEN BRAND THUNDER AND YOU AS A "PUBLISHER" (AS FURTHER DEFINED BELOW).
This Agreement and the Brand Thunder Terms of Service and the Brand Thunder Privacy Policies, each of which are incorporated hereby reference (and available at http://brandthunder.com) govern your access to and use of the Brand Thunder Technology (defined below).
Certain elements of the Brand Thunder Technology or other services or programs offered by Brand Thunder may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between this Agreement and the terms posted for a specific element of the Brand Thunder Technology or other services or programs offered by Brand Thunder, the latter terms and conditions will take precedence with respect to your use of or access to that element of the Brand Thunder Technology, the other services or your participation in such program.
BY SELECTING THE ”CREATE MY ACCOUNT” OR SIMILAR BUTTON, BY ACCESSING OR USING THE BRAND THUNDER TECHNOLOGY OR YOUR PUBLISHER ACCOUNT YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT AND AGREE THAT BRAND THUNDER WILL TREAT YOU AS A PUBLISHER ON THE BRAND THUNDER NETWORK FROM THAT POINT ONWARDS. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE BRAND THUNDER TECHNOLOGY. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, "PUBLISHER", "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT BUSINESS. FURTHER, YOU CONSENT TO THE USE OF: (A) ELECTRONIC MEANS TO COMPLETE THIS AGREEMENT AND TO PROVIDE YOU WITH ANY NOTICES GIVEN PURSUANT TO THIS AGREEMENT; AND (B) ELECTRONIC RECORDS TO STORE INFORMATION RELATED TO THIS AGREEMENT AND YOUR USE OF THE BRAND THUNDER TECHNOLOGY. BRAND THUNDER RECOMMENDS THAT YOU PRINT OUT OR SAVE A LOCAL COPY OF THE AGREEMENT FOR YOUR RECORDS.
You may not use the Brand Thunder Technology if (a) you are not of legal age to form a binding agreement with Brand Thunder, or (b) you are a person who is either barred or otherwise legally prohibited from using the Brand Thunder Technology under the laws of the country in which you are resident or from which you access or use the Brand Thunder Technology.
For the purpose of this Agreement, the following capitalized terms shall have the following meanings:
1.1."Application" means any software application generated or administered by Publisher via its use of the Brand Thunder Technology in compliance with the terms and conditions of this Agreement, for use on the internet, mobile phone and/or any other current or future platform or media. For example, an Application may be a Browser Theme or Brand Thunder powered App, both of which may be made available to End Users.
1.3."Brand Thunder" means Brand Thunder LLC. Brand Thunder’s address for receipt of notices hereof is PO Box 111, Columbus OH 43002.
1.4."Brand Thunder Privacy Policies" means the Brand Thunder privacy policies available at http://brandthunder.com/privacy, which contain information about Brand Thunder’s policies and procedures regarding the collection, use and disclosure of information Brand Thunder receives from users of the Brand Thunder Technology, as updated by Brand Thunder from time to time.
1.5.“Brand Thunder Provided Technology” means all the third-party content and technology that is provided by Brand Thunder to Publisher and other third parties as part of the Brand Thunder Technology.
1.6.“Brand Thunder Technology” means Brand Thunder’s proprietary Application-generating platform and any other products and services provided by Brand Thunder therein or in connection thereto (whether owned by Brand Thunder or licensed by it) including, but not limited to, software and tools provided by Brand Thunder to Publisher which enable the implementation and administration of an Application in connection with the Brand Thunder Technology.
1.8."End User" means an individual user who installs and/or uses an Application.
1.9."End User Content" means any text, data, graphics, images, photos, audio or video files, links, content, information or other materials which End Users post, upload, link and otherwise submit to or via an Application or any Application component.
1.10."EULA" means Brand Thunder’s End-User License Agreement to which End Users must provide their assent as part of the Application installation process.
1.11."Intellectual Property Right(s)" means without limitation: (i) all patentable inventions, all improvements thereto and all patents, patent applications and patent disclosures; (ii) all registered and unregistered trademarks, service marks, trade names, trade dress, logos and registrations and applications for registration thereof; (iii) all copyrights in copyrightable works, and all other rights of authorship, and all applications and registrations in connection therewith; (iv) all trade secrets and confidential business and technical information (including research and development, know-how, proprietary knowledge, formulas, technology, engineering, production and other designs, drawings, engineering notebooks, industrial models, software and specifications); (v) all rights in databases and data compilations, whether or not copyrightable; and (vi) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
1.12."Publisher" means an individual or entity that creates, implements and/or administers an Application.
1.13."Publisher Materials" means any text, data, graphics, images, trademarks, audio or video files, links, web pages, components, content and information provided by Publisher in connection with an Application, including that which a Publisher adds to any part of the Brand Thunder Technology or to its website, including any new releases or new versions thereof and any Updates thereto.
1.14."Browser Theme" means a browser theme created and/or customized by Publisher via its use of the Brand Thunder Technology in compliance with the terms and conditions of this Agreement.
1.15."Updates" means bug fixes, error corrections and patches; and does not include new versions or new releases.
Brand Thunder reserves the right to modify, discontinue or terminate the Brand Thunder Technology or to modify this Agreement at any time and without prior notice. If Brand Thunder modifies this Agreement it will post the modification on its website or provide you with notice of the modification. Brand Thunder will also update the "Last Updated Date" at the bottom of the page. By continuing to access or use an Application, any Brand Thunder Technology or your Publisher Account after Brand Thunder has posted a modification on its website or has provided Publisher with notice of a modification, Publisher agrees to be bound by the modified Agreement. If the modified Agreement is not acceptable to Publisher, Publisher’s only recourse is to cease using the Application or the Brand Thunder Technology. Publisher can review the most current version of this Agreement at any time at: http://brandthunder.com.
3.1.In connection with registration with Brand Thunder as a Publisher, Publisher will be provided with or may chose a username and password with which Publisher shall be able to access its online account available on brandthunder.com, from which Publisher can use elements of the Brand Thunder Technology (the "Publisher Account"). Publisher agrees to provide accurate, current and complete information during the registration process and to keep such information up to date. Brand Thunder reserves the right to suspend or terminate the Publisher Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. Publisher is responsible for safeguarding and maintaining the confidentiality of its username, password and corresponding Publisher Account information. Publisher agrees that it is entirely and solely responsible for any and all activities or actions that occur under its Publisher Account, whether or not Publisher has authorized such activities or actions. Publisher agrees to notify Brand Thunder in writing of any unauthorized and/or fraudulent use of its Publisher Account, an Application, the name of its Application or its username or password. For purposes hereof, Publisher's identifying details will be those provided by it during the registration process for creating an Application or as may be updated during the Term subject to Brand Thunder’s prior written approval.
3.2.Without limiting any other terms of the Agreement, in the event that Publisher does not access its Publisher Account for a consecutive period of six (6) months or more, Brand Thunder may change the name of disable or remove from the Brand Thunder servers any Application associated with such Publisher Account or suspend access to or terminate such Publisher Account without notice.
3.3.Brand Thunder retains the exclusive right in its sole discretion to: (a) determine which Brand Thunder Technology or other tools or software will be available for Publisher’s use via the Brand Thunder Technology; and (b) to add, change or remove any content, materials and/or functionality made available in any Application or in the Brand Thunder Technology at any time. For example, Brand Thunder may change the settings and/or appearance of any part of the Brand Thunder Technology or any elements thereof which may be provided in an Application or otherwise, without prior notice or Brand Thunder may provide any Updates, new versions, new releases and upgrades to any Brand Thunder Technology or any other elements thereof. Notwithstanding the foregoing, the Publisher Materials will not be modified, but the format of the Publisher Materials as provided in an Application may change as a result of the technical removal or addition of a functionality or element of a Brand Thunder Technology from an Application.
3.4.Brand Thunder retains the exclusive right to determine and set the default provider of any web search services, functionality or feature ("Web Search Feature") that may be available in an Application, for any Application, including, without limitation, the right to change any definitions that may be required as part of the setting of such default Web Search Feature. Publisher will not: (i) modify, remove or interfere with the default Web Search Feature provided in or made available in any Application or the definitions related thereto; (ii) provide, make available or link to any Web Search Feature, including without limitation references or advertisements to Web Search Features, that compete with or are similar to the default Web Search Feature provided in or made available in any Application; (iii) provide, make available or link to any Web Search Feature in any Application that does not provide or makes available any Web Search Feature; or (iv) permit, authorize or encourage a third party to engage in the prohibited activity set forth in (i) or (iii).
3.5.In the event that Brand Thunder offers certain unique features or functionality such as, video search or music features as part of the Brand Thunder Technology (each a "Unique Feature"), Publisher shall not modify, remove or interfere with Unique Features including, but not limited to the default settings and/or the definitions thereof.
4.LICENSE AND RESTRICTIONS.
4.1.Subject to the terms and conditions of this Agreement, Brand Thunder hereby grants to Publisher a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable license during the Term to: (a) use the Brand Thunder Technology to create and implement an Application; (b) distribute and administer an Application; and (c) access and use the Brand Thunder Technology to the extent permitted hereof. All rights which are not expressly granted herein are reserved by Brand Thunder. Publisher may not make any use of the Brand Thunder Technology (including the Brand Thunder Provided Technology) in whole or in part in any manner not expressly permitted by this Agreement.
4.2.Publisher hereby grants to Brand Thunder a worldwide, royalty free, non-exclusive right and license (with the right to sublicense): (a) to use, reproduce, modify, distribute, perform, transmit, display and access the Publisher Materials solely for the purposes of providing and promoting the Brand Thunder Technology and making an Application available in connection therewith; and (b) to access and query an Application as set forth in this Agreement, including without limitation to run any queries necessary to confirm Publisher’s compliance with the terms and conditions of this Agreement or to implement any changes or updates to an Application as set forth in Article 3. In the event that Publisher wishes to exclude the Publisher Materials from any such promotion or distribution, Publisher shall notify Brand Thunder via the “Contact Us” link which is available at its Publisher Account.
4.3.Publisher will not attempt to interfere with or disrupt the Brand Thunder Technology or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Brand Thunder Technology). Except as expressly specified in this Agreement, Publisher will not: (a) use, copy, or modify the Brand Thunder Technology (including the Brand Thunder Provided Technology) or any part thereof; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Brand Thunder Technology (including the Brand Thunder Provided Technology) to any third party; or (c) use the Brand Thunder Technology or an Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement. Publisher agrees not to disassemble, decompile or otherwise reverse engineer the Brand Thunder Technology or an Application or any part thereof, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
5.PROMOTION AND MARKETING.
5.1.Publisher may not issue any press release or any other marketing regarding this Agreement without Brand Thunder’s prior written approval. Subject to Section 6.15, Publisher shall advertise and promote the Application from the Publisher website and may, in addition, advertise and promote the Application from Publisher’s other online or offline properties ("Publisher Promotion"). The Publisher Promotion from the Publisher website shall include a link to the Application download page. In the event that an Application does not automatically include the notice "Powered by Brand Thunder" ("Brand Thunder Notice"), Publisher shall provide the Brand Thunder Notice in a prominent and visible format in connection with any Publisher Promotion and where provided via a web page, Publisher will include a link to http://brandthunder.com in the Publisher Promotion. As an example, Publisher may satisfy the requirements of this Section using the following wording: "[Application name] Powered by Brand Thunder".
5.2.Publisher agrees that Brand Thunder may: (a) feature an Application in different marketing outlets and/or collateral, including without limitation newsletters, case studies, email or ad campaigns and web pages; (b) indentify Publisher as a user of the Brand Thunder Technology on Brand Thunder websites, client lists, press releases, and in other marketing; and (c) publish a brief description and/or case study highlighting Publisher’s deployment of an Application and use of the Brand Thunder Technology (each a "Brand Thunder Promotion"). In the event that Publisher wishes to be excluded from a specific Brand Thunder Promotion, Publisher shall notify Brand Thunder in writing via the “Contact Us” link, which is available at its Publisher Account. Unless otherwise agreed by parties, Publisher shall not be entitled to any compensation as a result of any Brand Thunder Promotion.
5.3.Subject to the terms and conditions of this Agreement, each party grants to the other party a limited, worldwide, non-assignable, non-sublicensable, non-exclusive license to use the other party’s Marks solely to engage in the marketing and promotional activities set forth in this Agreement. "Marks" mean a party’s trademarks, service marks, trade names and associated logos that a party may provide to the other party in connection with this Agreement. Any use by one party of a Mark of the other party must be in accordance with applicable law and with respect to Brand Thunder, solely in accordance with Brand Thunder’s Trademark Policy. Each party acknowledges and agrees that any and all goodwill and other proprietary rights that are created by or that result from such party’s use of a Mark of the other party as permitted hereunder will inure solely to the benefit of the other party.
6.1.Publisher represents and warrants that the Publisher Materials do not contain, distribute or promote any Prohibited Activity or any content that may be regarded as Prohibited Activity. In addition, Publisher shall not create, distribute, promote or use an Application by any means that qualify as Prohibited Activity and shall not use in connection with an Application or the Brand Thunder Technology any content generated by any third party which is engaged in any Prohibited Activity.
6.2.The term "Prohibited Activity" means: (a) activity or use of content (including, without limitation, signs, images, or texts) that (i) violates any applicable law, regulation or order of any court or tribunal including, but not limited to, collecting personal information from any individuals under the age of 13 in violation of the Children’s Online Privacy Protection Act of 1998; (ii) violates, misappropriates, or infringes any third party (including, without limitation, End Users) Intellectual Property Rights, rights of privacy and publicity, or other proprietary or legal rights; or (iii) materially interferes with Web navigation or browsing; (b) usage which adversely affects public or private infrastructure or equipment; (c) installations of an Application that are generated without an accurate and conspicuous disclosure and without informed and active consent; (d) Fraudulent Activity (defined below); (e) use of content or content which: (i) is, promotes or advocates pornographic, obscene, excessively profane, racial, libelous, gambling-related, discriminatory, offensive or deceptive material or any type of malware; (ii) promotes, advocates or facilitates terrorism, terrorist-related activities or violence; or (iii) contains excessive or inappropriate advertisements as determined by Brand Thunder in its sole discretion; (h) using an Application or the Brand Thunder Technology in order to offer, distribute or promote any web browser application that is substantially similar to the Application; or (i) redirect traffic or replace web pages available with an Application to web pages which promote content or products which may adversely effect use of the Application.
6.3.Publisher represents and warrants that it shall not, and shall not allow any third party to: (i) engage in any Prohibited Activity in connection with or pertaining to an Application or the Brand Thunder Technology; (ii) add to an Application or the Brand Thunder Technology any Prohibited Activity; or (iii) distribute an Application from a website or as part of a promotion that includes Prohibited Activity. In the event that Prohibited Activity pertaining to any Application is detected, Publisher shall immediately remove and resolve such Prohibited Activity.
6.4.Without limiting any other terms of this Agreement, Publisher acknowledges and agrees that at any time during the Term, Brand Thunder has the right, at its sole discretion (without notice to Publisher) to: (a) remove Prohibited Activity from an Application or the Brand Thunder Technology; (b) take any measures needed to prevent or correct Prohibited Activity (including, without limitations, upon receipt of claims, allegations from third parties or authorities relating to such content) or for no reason at all; and (c) assist any governmental agency or other applicable legal authorities with respect to any Prohibited Activity that was detected in or made available via an Application or the Brand Thunder Technology.
6.5.Publisher shall not engage with and shall not encourage any other third party (including, without limitation and as applicable, End Users) to engage in Fraudulent Activity in connection with an Application or the Brand Thunder Technology. Without limiting any other terms of this agreement or other remedies available to Brand Thunder, in the event that Publisher or any other third party engages in any Fraudulent Activity, Brand Thunder shall have the sole and exclusive right to disable an Application, suspend the Publisher Account or take any other applicable measures at its sole discretion.
6.6.The term "Fraudulent Activity" means any of the following activities: (a) fictitious installations of an Application; (b) automated and/or fraudulent searches in any Web Search Feature that may be available via an Application, including without limitation in the web-search result pages, or searches for any purpose other than organic retrieval of information and web browsing in good faith; (c) automated and/or fraudulent clicks on: ads, sponsored links, sponsored search results, Application components, or such clicks for purposes other than retrieval of information in good faith; (d) initiating or using a promotion in connection with an Application which violates any applicable law or regulation, or an existing agreement between Publisher and Brand Thunder or which is not consistent with industry standards; (e) hacking or phreaking an Application or the Brand Thunder Technology or any part thereof; (f) using in connection with an Application or the Brand Thunder Technology any material that contains software viruses or any other computer code, files or programs designed to interrupt, hijack, destroy or limit the functionality of any computer software, hardware, network or telecommunications equipment; or (g) encouraging an End User to use any Web Search Feature that may be available via an Application or to perform web-searches therein by pre-populating search terms in any such search feature.
6.7.The EULA will be included in the Application installation package. Publisher shall: (a) abide by the EULA; (b) use its best commercial efforts to ensure that the End Users comply with the terms of the EULA; and (c) inform Brand Thunder promptly of any known violation or breach thereof. Publisher shall not: (i) modify or change any of the terms contained in the EULA; (ii) distribute an Application to End Users without making the EULA available to End Users or interfere with the provision of the EULA to End Users; or (iii) circumvent the requirement that the End Users accept the EULA as part of an Application installation process. The foregoing is a material obligation of Publisher hereunder.
6.8.Publisher may elect to also include terms and conditions or an end user agreement with an Application that will govern use of its Publisher Materials ("Application Terms"). In the event that Publisher does so, Publisher acknowledges and agrees: (a) Publisher is solely responsible for provision of its Application Terms to End Users and for obtaining valid assent to its Application Terms from End Users; (b) such Application Terms will not be inconsistent with the terms of the EULA and must comply with all applicable laws in all countries where End Users can access an Application; (c) Publisher will make no representations or warranties on behalf of Brand Thunder in such Application Terms; and (d) that the Application Terms are an agreement between Publisher and the End User and Brand Thunder is not a party to that agreement. Furthermore, Brand Thunder will not be responsible for, nor have any liability with respect to: (x) any agreement between Publisher and an End User or an End User’s breach of the Application Terms; or (y) Publisher’s failure to provide any Application Terms and/or to obtain valid assent to any Application Terms from End Users.
6.9.Publisher will not use the Brand Thunder Technology or an Application to offer, display, distribute, transmit, route, provide connections to or store any content or any other material that infringes copyrighted works or otherwise violates or promotes the violation of the Intellectual Property Rights of any third party. Brand Thunder has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders. The Brand Thunder Copyright Policy is available at http://brandthunder.com. In compliance with the safe harbor provision(s) of the Digital Millennium Copyright Act of 1998 ("DMCA"), Brand Thunder reserves the right to take down any and all content posted via use of the Brand Thunder Technology or an Application at any time in its sole discretion. Without limiting other provisions herein, Publisher agrees to assist Brand Thunder with any such compliance activities. Without limiting any other terms of this Agreement, if an Application allows End Users to offer, display, distribute, transmit, route, provide connections to or store any material or includes services through which other users can do the same, Publisher will: (i) adopt a policy that complies with the eligibility requirements for the DMCA safe harbors; (ii) reasonably enforce and implement said policy; and (iii) satisfy all other DMCA requirements for safe harbor eligibility, including, but not limited to, responding expeditiously to remove, or disable access to, material that is claimed to be infringing or to be the subject of infringing activity upon receipt of notification of claimed copyright infringement from us or a third party, as required by the DMCA.
6.12Publisher shall not utilize the Brand Thunder Technology, an Application or any Application component to create a security hole or to pose any kind of security threat to the End Users or any third party ("Security Breach"). A Security Breach may include, without limitation, creation, distribution, use or delivery of any of the following: spyware, programs designed to hijack cookies or stuff cookies (i.e. “parasiteware”), adware, programs designed to send unsolicited advertisements (i.e. "spamware"), viruses, services that send unsolicited advertisements, programs designed to hijack computers, malicious/exploiting of content or components, programs designed to gain unauthorized access to networks on the Internet and any other type of malware.
6.13In the event that a Security Breach or a violation of privacy rights is detected by Publisher or reported to Publisher, Publisher shall immediately remove, fix or resolve the Security Breach or privacy violation and inform the End Users and Brand Thunder about such Security Breach or privacy violation and its applicable remedy.
6.14.Unless Publisher receives Brand Thunder’s prior written approval, Publisher shall not use in connection with an Application or any part thereof any privacy-or safety-related certification seal or mark that is hosted, obtained or provided by Brand Thunder or by Brand Thunder partners as part of the Brand Thunder Technology or in connection with use of the Brand Thunder Technology.
6.15.Publisher shall not distribute or promote an Application by bundling or integrating an Application installation file with any other application or software or as a part of a package of software or any other application without obtaining Brand Thunder’s prior written approval. For the avoidance of doubt, the foregoing stipulation includes the distribution or promotion of an Application by integrating an Application installation process with any web registration procedure.
6.16.Use of the Brand Thunder Technology is currently provided free of charge. Publisher acknowledges and agrees that it will not receive any compensation or cash payment from Brand Thunder in connection with this Agreement or otherwise (including, but not limited to as the result of the creation, implementation or administration of an Application), unless explicitly agreed to by Brand Thunder in writing.
7.1.Except as expressly granted in this Agreement, Brand Thunder retains all right, title and interest in and to the Brand Thunder Technology, its Marks and any Application (except for the Publisher Materials) including any Intellectual Property Rights therein and the right holders of the Brand Thunder Provided Technology retain all right, title and interest in and to their respective content and technology including any Intellectual Property Rights therein. Publisher will not earn or acquire any rights or licenses in the Brand Thunder Technology or any of Brand Thunder’s Intellectual Property Rights or in the Brand Thunder Provided Technology on account of this Agreement or Publisher’s performance under this Agreement except as expressly set forth in the limited license grants set forth herein. Publisher will retain and reproduce any copyright, disclaimers and other proprietary notices in full and as they appear in or on the Brand Thunder Technology and Application.
7.2.Except as expressly granted in this Agreement, Publisher retains all right, title and interest in and to the Publisher Materials and its Marks, including any Intellectual Property Rights therein.
7.3.Publisher shall not assert any Intellectual Property Rights with respect to any Brand Thunder Technology (including the Brand Thunder Provided Technology) or any element, derivation, adaptation, variation or name thereof. Except as set forth in Article 5 above, an Application shall not include and/or be promoted using any Intellectual Property Right of Brand Thunder or its authorized third-party licensors, unless and to the extent that Brand Thunder adds its own button, logo or any other branded element to an Application or unless otherwise provided in this Agreement.
8.1.During the Term, Publisher may have access to certain non-public information of Brand Thunder, whether written or oral, and regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (together, the "Confidential Information"). Publisher agrees: (i) not to disclose any of Brand Thunder’s Confidential Information to any third parties; (ii) not to use any of Brand Thunder’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; and (iii) to keep the Brand Thunder’s Confidential Information confidential using the same degree of care Publisher uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care.
8.2.At any time upon the written request of Brand Thunder, Publisher shall return to Brand Thunder, or destroy, subject to Brand Thunder’s written instructions, all of Brand Thunder’s Confidential Information in tangible form in its possession, and shall provide Brand Thunder with a written certificate evidencing the complete and full execution of the provisions of this Article.
8.3.Unauthorized disclosure or use of Confidential Information may give rise to irreparable injury, which may not be adequately compensated by damages. Publisher agrees and acknowledges that money damages are not a sufficient remedy for any breach of this Agreement by the Publisher and that Brand Thunder shall be entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach thereof, in addition to any other remedies available at law or in equity.
8.4.Publisher acknowledges and agrees that Brand Thunder may provide to the applicable authorities or any court of competent jurisdiction the Publisher Account related information in the event that Brand Thunder is required by legal process, order of any court of competent jurisdiction, or any applicable law, rule or regulation to provide such information.
8.5.Publisher shall keep in strict confidence and shall not disclose to any third party any of Brand Thunder’s Confidential Information during the Term hereunder and for a period of three (3) years following the termination of this Agreement, unless a longer period of protection applies under applicable law, either as trade secret information or otherwise.
9.REPRESENTATIONS AND WARRANTIES.
9.1.By Brand Thunder. Brand Thunder represents and warrants that it will use commercially reasonable efforts to perform its obligations hereunder. Brand Thunder is not responsible for and does not provide any warranty with respect to any content (including, without limitation, content part of an Application, Brand Thunder Provided Technology, End User Content or Publisher Materials) or any third-party sites that can be linked through the Brand Thunder Technology or an Application. Further, Brand Thunder does not guarantee that any content (including, without limitation, Brand Thunder Provided Technology, End User Content or Publisher Materials) will be made available through an Application, the Brand Thunder Technology, continuously or at all. WHILE BRAND THUNDER IS UNDER NO OBLIGATION TO DO SO, WITHOUT LIMITING ANY OTHER TERMS OF THIS AGREEMENT, BRAND THUNDER RESERVES THE RIGHT TO REMOVE AND PERMANENTLY DELETE ANY CONTENT FROM ANY APPLICATION WITHOUT NOTICE IN THE EVENT SUCH CONTENT IS PROVIDED IN VIOLATION OF THE TERMS OF THIS AGREEMENT. Brand Thunder does not have any obligation to monitor the End User Content or the Publisher Materials that are uploaded, posted, submitted or otherwise transmitted using an Application or otherwise, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the End User Content, Publisher Materials or anything said, depicted or written by Publishers or End Users, including, without limitation, any information obtained by using any Application. Brand Thunder does not endorse any End User Content or Publisher Materials or any opinion, recommendation or advice expressed therein and Publisher agrees to waive, and hereby does waive, any legal or equitable rights or remedies Publisher has or may have against Brand Thunder with respect thereto. Brand Thunder does not make any representation with respect to so-called “open source” or free software that may be included in the Brand Thunder Technology. Any open source software that may be accompanying the Brand Thunder Technology is licensed to you in accordance with the applicable open source license or copyright notice accompanying such open source software and Brand Thunder hereby disclaims any and all liability to you or any third party related thereto. THE BRAND THUNDER TECHNOLOGY, THE APPLICATION AND THE BRAND THUNDER PROVIDED TECHNOLOGY ARE PROVIDED BY BRAND THUNDER "AS IS". EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BRAND THUNDER MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT ARISING IN THE COURSE OF OR CONNECTED TO THE PERFORMANCE HEREUNDER. IN ADDITION, BRAND THUNDER DOES NOT REPRESENT OR WARRANT THAT: (I) THE BRAND THUNDER TECHNOLOGY OR ANY OF ITS PRODUCTS, SERVICES OR SOFTWARE WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) OPERATION OF THE BRAND THUNDER TECHNOLOGY OR ANY OF ITS PRODUCTS, SERVICES OR SOFTWARE WILL BE UNINTERRUPTED; (III) PUBLISHER WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM PUBLISHER’S USE OF THE BRAND THUNDER TECHNOLOGY OR ANY APPLICATION; OR (IV) ANY APPLICATION OR ANY CONTENT WILL BE MADE AVAILABLE VIA THE BRAND THUNDER TECHNOLOGY OR OTHERWISE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PUBLISHER.
10.1.Publisher (the "Indemnifying Party") shall defend, hold harmless, and indemnify Brand Thunder, and/or its subsidiaries, affiliates, directors, officers, employees, agents , successors and permitted assignees (collectively "Indemnified Party"), from and against any and all claims, damages, losses, suits, actions, demands, proceedings, expenses and/or liabilities of any kind, (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) threatened, asserted or filed (collectively, "Claims") brought or made by any third party against the Indemnified Party arising out of: (a) a breach or alleged breach of any warranty, representation or obligation made by the Indemnifying Party under this Agreement; (b) any use of the Brand Thunder Technology or an Application in any manner inconsistent with or in breach of this Agreement; (c) violation of End User’s privacy rights or the creation of a Security Breach by Publisher; or (d) the End Users' use of an Application.
10.2.The Indemnified Party shall: (a) promptly notify the Indemnifying Party of such Claim; provided that a failure to give such prompt notice shall not excuse or diminish the Indemnifying Party’s obligations under this Article, (b) provide the Indemnifying Party with reasonable information, assistance and cooperation in defending the lawsuit or proceeding, and (c) give the Indemnifying Party full control and sole authority over the defense and settlement of such Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior approval. The Indemnified Party may join in the defense of such Claim with counsel of its choice at its own expense.
11.LIMITATION OF LIABILITY.
IN NO EVENT WILL BRAND THUNDER AND ITS THIRD PARTY LICENSORS BE LIABLE TO PUBLISHER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE BRAND THUNDER TECHNOLOGY OR AN APPLICATION UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT BRAND THUNDER OR ITS THIRD PARTY LICENSORS WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT SHALL BRAND THUNDER’S OR ITS THIRD PARTY LICENSORS’ AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED FIVE HUNDRED DOLLARS (US $500.00). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
12.TERM AND TERMINATION.
12.1.This Agreement shall commence on the date Publisher agrees to the terms and conditions of this Agreement as set forth above and shall continue in force thereafter, unless terminated as provided herein (the "Term").
12.2.Either party may terminate this Agreement upon five (5) days' prior written notice to the other party for any reason and without liability for such termination.
12.3.Brand Thunder may immediately suspend the Publisher Account or terminate this Agreement and disable an Application, in any one of the following instances: (a) if Publisher breaches any obligation, representation and/or warranty contained in this Agreement; (b) if Publisher engages in any acts prohibited by this Agreement; (c) if Publisher engages in any action that, in Brand Thunder’s sole discretion, reflects poorly on Brand Thunder or otherwise disparages or devalues Brand Thunder’s reputation or goodwill; or (d) if Brand Thunder reasonably determines that it is commercially impractical to continue supporting an Application in light of legal, business or technical issues.
12.4.Upon the termination of this Agreement for any reason: (a) all rights and licenses granted hereunder by each party shall cease immediately, provided, however, that in the event that Publisher Materials remain in the Application, Brand Thunder shall have the right to transmit, display or modify such Publisher Materials for as long as the Application is in use by any End User; (b) Publisher shall promptly return to Brand Thunder, or destroy and certify the destruction of, all of Brand Thunder’s Confidential Information; (c) Publisher’s rights to use the Brand Thunder Technology or any part thereof in connection therewith and an Application, as permitted under this Agreement, shall cease immediately; (d) Publisher shall immediately cease using the download link to any Application; and (e) Brand Thunder shall have the exclusive right to modify an Application or remove any Application from the Brand Thunder Technology and/or disable any Application. Brand Thunder will not be liable to Publisher or any third party for termination of this Agreement or termination of Publisher’s access to the Brand Thunder Technology or an Application. UPON ANY TERMINATION OR SUSPENSION, ANY PUBLISHER MATERIALS OR INFORMATION WHICH IS RELATED TO THE PUBLISHER ACCOUNT MAY NO LONGER BE ACCESSED BY PUBLISHER. Furthermore, Brand Thunder will have no obligation to maintain any information stored in its data centers related to the Publisher Account or to forward any information to Publisher or any third party.
12.5.Following the termination of this Agreement, any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement (including Articles 1, 6, 7, 8, 9, 10, 11 and 13 and Section 3.3, 3.4 and 3.5. 5.2, 12.4 and this Section 12.5), shall be deemed to survive for as long as necessary to fulfill such purposes.
13.1.This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes any other prior or collateral agreements with respect to the subject matter hereof, whether oral or written.
13.2.Publisher may not assign its rights and/or delegate its obligations under this Agreement without Brand Thunder’s prior written consent. This Agreement shall be binding on and inure to the benefit of each of the parties and their respective successors and assignees. This Agreement is not made for the benefit of any third party who is not a party hereto, and only the parties hereto or their respective successors and permitted assigns will acquire or have any benefit, right, remedy or claim under or by reason of this Agreement.
13.3.This Agreement will be governed by and construed under the laws of the State of Ohio, excluding its conflict of law rules and principles. Each party agrees to submit to the personal and exclusive jurisdiction of the courts located in Franklin County, Ohio. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
13.4.Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.
13.5.If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties hereto and has like economic effect.
13.6.The failure to require performance of any provision of this Agreement shall not affect a party’s right to require performance at any time thereafter; nor shall waiver of a breach of any provision constitute a waiver of the provision itself.
13.7.The parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to create any agency, partnership or joint-venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other, nor shall either party have any right or authority to create any obligation on behalf of the other party.
13.8.All notices required or permitted under this Agreement shall be in English and in writing and shall be delivered (a) to Brand Thunder - by facsimile, e-mail or other electronic means, by registered or certified mail (postage prepaid) or by overnight courier service, at the address set forth in Paragraph 1 of this Agreement or at such other address as Brand Thunder shall have furnished to Publisher in writing. A notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon verification of receipt via facsimile or e-mail, (iii) within one (1) business day of being sent by overnight courier, or (iv) within three (3) business days of being sent by registered or certified mail, and (b) to Publisher - to the e-mail address provided by Publisher in connection with its Publisher Account. For purposes of the foregoing, Brand Thunder shall be permitted to rely upon the e-mail address provided by Publisher to Brand Thunder as provided above and shall not be responsible for delays in the delivery of e-mails which delays are not associated with Brand Thunder’s mail server.
Last updated: July, 2010
Reporting Copyright Infringements
Brand Thunder does not permit copyright infringing activities or any infringements of intellectual property rights on its platform, and will remove all Content if properly notified that such content infringes upon the intellectual property rights of any party. Notifications about copyright or intellectual property rights infringements should be delivered in accordance with the DMCA's Notice of Claims of Copyright Infringement.
Notice of Claims of Copyright Infringement
Pursuant to the Digital Millennium Copyright Act, 17 U.S.C. Section 512 (the "DMCA"), Brand Thunder has designated an agent (specified below) to receive notifications of claimed copyright infringement on its sites. Please be advised that we enforce a policy that provides for the termination in appropriate circumstances of subscribers who are repeat infringers.
If you believe that your work has been copied in a way that constitutes copyright infringement or that your intellectual property rights have been otherwise violated, please provide Brand Thunder's designated agent with the following information in accordance with the DMCA:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest.
A description of the copyrighted work or other intellectual property that you claim has been infringed.
A description of where the material that you claim is infringing is located, with enough detail that we may find it; providing URLs in the body of an e–mail is the best way to help us locate content quickly; if possible, please add dates, screenshots, and all other relevant details that will be sufficient to identify what you are objecting to.
Your address, telephone number, and e–mail address.
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law.
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Please note that under Section 512(f) any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
All materials must be submitted in the English language. In the event that translated materials are used, please provide a notarized authorization of the translations.
Brand Thunder's designated Agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
Patrick Murphy, CEO
You provide information to us when you use the software, applications, services and web sites of Brand Thunder (“Brand Thunder”) or when you register with us. In the following three sections, we explain what information is collected, how it is used, and the choices that you have with your information.
by Brand Thunder.
Depending on how you interact with Brand Thunder, you provide us with information. This may include your e-mail address, and information you provide us when you contact us for help. We may collect non-personally identifiable web surfing data such as tracking if the Brand Thunder application is active (to determine total Unique active browsers), the total number of clicks on our partner links (in aggregate) you perform through a Brand Thunder application (no search queries are tracked) and whether or not you chose to use one of our search partners for the browser’s default search.
You can modify the non-personally identifiable tracking functions of Brand Thunder by typing “about:config” in your browser’s urlbar, and in the filter textfield type “btmetricslite” and change the setting from “TRUE” to “FALSE” Please remember that if you disclose information about yourself on public areas of Brand Thunder, other online users may obtain access to any information you provide. Therefore, you assume all risk if you elect to disclose information about yourself to others, whether in public areas on Brand Thunder or if you elect to disclose information that you share with others.
Children under the age of thirteen (13) are not eligible to use our service and must not submit any personal information to us.
We use industry standard technology designed to help keep your personal information safe. If you have any other questions about the security of our website, please contact us at privacy (at) brandthunder.com