Terms and Conditions

EMEA Terms and Conditions
APAC Terms and Conditions

1. Definitions

1.1 In this Agreement:

1.1.1. Agreement means this Brafton Content Marketing Services Terms and Conditions.

1.1.2. Content means the text, images, graphics, video and other information intended for websites provided to Subscriber by Brafton in accordance with the Creative Brief and the Content Strategy and agreed to from time to time.  Content does not include source files for images or graphics nor does it include raw video footage. Source files and raw video footage may be available at additional cost to Subscriber.

1.1.3. Creative Brief means the working document jointly developed and agreed upon between Brafton and Subscriber that will dictate content Strategy, style, tone, voice, length, subject matter and keyword inclusion for Content.

1.1.4. Brafton Technology means Brafton’s suite of content marketing platform and automation tools including but not limited to API Data feeds, Content Alerts and Approval mechanisms, Media Hosting and Asset and Lead Gateway.

1.1.5. Data means the xml API data feed of Content provided by Brafton.

1.1.6. Strategy means the agreed plan for the application of the Service for Content and Inclusive Services and Brafton Technology. 

1.1.7. Inclusive Services means the “as is” services provided as a part of the Brafton Content Marketing Service.

1.1.8. Technical Support means inclusive support and assistance provided to Subscriber’s representative in installing and implementing Brafton Technology.

1.1.9. Technical Services means services additional to Technical Support whereby Subscriber purchases or allocates Service for the purpose of specific website development projects.

1.1.10. Customer Information means any data, information or material originated by Subscriber that Subscriber submits, collects or provides in the course of using the Service.

1.1.11. Destination means any URL or other online or social media Destination(s) designated by Subscriber for display of Content to Users.

1.1.12. User means an individual obtaining access to Content provided to Subscriber.

1.1.13. Start Date means the specific date that Subscriber’s Service begins.

1.1.14. Service means the Brafton Content Marketing service as defined in this Agreement.

2. Service

2.1. Brafton’s Content Marketing Service is a custom service through which Brafton works with Subscriber to develop and deliver content marketing strategies that include consulting and/or Content services that aim to achieve Subscriber’s online marketing goals.

2.2. Brafton will liaise with Subscriber’s appointed Editorial and Technical representatives, whom Brafton is entitled to treat as authorized to bind Subscriber on editorial and technical issues respectively.

2.3. Before the Start Date Brafton will liaise with Subscriber’s Editorial representative to discuss the Strategy and Inclusive Services to be applied; and liaise with Subscriber’s Technical representative to provide reasonable Technical Support with installation and implementation.

2.4. Subscriber may commission Content from Brafton each month to the value of Subscriber’s Service in accordance with Subscriber’s Strategy as documented in the Creative brief.

2.5. Subscriber may request and Brafton will provide updates and changes to Content on an ongoing basis, consistent with the Creative brief.

2.6. Subscriber may choose to approve all Content prior to publication.

2.7. Subscriber’s Service will be delivered according to the agreed Strategy. Brafton may require Subscriber’s briefing and input in order to provide Content or Inclusive Services. Any delay in Subscriber providing briefing or input may cause a delay in the provision of Content.  In such circumstances where Subscriber does not provide the briefing or input required to provide Content or Inclusive Services Subscriber may roll forward the Service for a maximum period of three months but thereafter Brafton will have no obligation to provide Content or Inclusive Services for that Service period.  Upon termination of this Agreement Brafton’s responsibility to provide Service to Subscriber beyond the termination date of this Agreement is automatically waived unless mutually agreed otherwise in writing by both parties. In any event Subscriber remains liable for payment of the Service as defined in this Agreement.

3. Terms of Service

3.1. The Service will commence on the Start Date.  Subscriber is responsible for full payment of all Services defined in this Agreement in advance of Service as defined in this Agreement.   While payment is overdue Brafton may suspend the Service, but Subscriber will remain liable to pay for the Service up to the date of suspension and thereafter for the remainder of the Service.  Service will re-commence upon payment of overdue sums. Either party may terminate this Agreement at any time if the other party is in breach of any of these terms and such breach is not cured within a 30 day period.

3.2. Any payment not made when due will be subject to a late charge of 1.5% per month overdue, or the highest rate allowed by law on the unpaid invoice, whichever is lower. If Subscriber’s account is delinquent, Brafton may (a) refer the account to a collection agency or attorney that may pursue collection of the past due amount in accordance with the Agreement and (b) remove hosted images, landing pages, and Content, and cease to provide hosting services for Subscriber. If Brafton is required to use a collection agency or attorney to collect any amount owed by Subscriber, Subscriber agrees to pay all reasonable costs of collection or other action. The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to Brafton under the Agreement or at law or in equity.

3.3. The Service is provided to Subscriber with the intention that Subscriber may publish it to the public at large at the Destination URL and on supporting electronic or print media.  Subscriber may not resell the Service or Content.  Any proceeds from unauthorized resale of the Service by Subscriber shall be paid to Brafton.

3.4. Upon termination or expiration of this Agreement, the following provisions shall survive: 1, 3.3, 4.2, 4.3, 4.4, 4.5, 5, 6, 7, 8, 9 and 11.

4. Standard of Service

4.1. It is Brafton’s responsibility to provide Content that does not knowingly infringe the intellectual property rights of others, and which is not unlawful.  Subject to 4.2 and 4.5 Brafton will indemnify Subscriber against all liabilities, costs, damages and losses suffered or incurred by Subscriber arising out of or in connection with any breach by Brafton of any of the foregoing provisions of this clause.

4.2. Any Content found to infringe the intellectual property rights of others or to be unlawful will be replaced by Brafton at its own expense. If Brafton becomes aware that any item of Content Brafton may have provided may be inaccurate or that its publication may be unlawful and requests Subscriber to withdraw it, Subscriber will do so immediately..

4.3. Information provided by the Service is intended for general reference and interest only.  Application of that information to any specific instance is the sole responsibility of the User.  Content is provided in good faith, but while Brafton will use reasonable efforts to ensure the accuracy of such information and analysis, Subject to clause 4.1 Brafton makes no warranties (express or implied) regarding accuracy or completeness or fitness for any purpose, and Brafton expressly excludes any liability in respect thereof (other than warranties not capable of exclusion). 

4.4. Brafton Technology will be hosted by third party providers that maintain Service Level Agreements of 99% uptime or better.  For current information on third party hosting SLA’s, please refer to www.brafton.com/sla. It is technically impossible to guarantee a service will be fault-free, and the Service is provided ‘as is’ and without warranties of any kind, express or implied (other than warranties not capable of exclusion); while Brafton will use commercially reasonable efforts to minimize unavoidable interruptions, and to notify Subscriber of anticipated interruptions, there may be times when the Service is unavailable.

4.5. Subscriber may request the removal of any Content. While Subscriber may alter Content, Brafton will not be liable for any additions, deletions or changes made to Content by Subscriber. 

5. Force Majeure

5.1. Brafton is not liable for any failure to fulfill its obligations caused by circumstances beyond its reasonable control, provided that Brafton has made reasonable efforts to fulfill its obligations under this Agreement.

6. Copyright & Ownership

6.1. Subscriber owns any data, information or material originated by Subscriber that Subscriber submits, collects or provides in the course of using the Service (Customer Information).  Brafton has no ownership rights in or to Customer Information. Subscriber shall be solely responsible for the accuracy, quality, content and legality of Customer Information, the means by which Customer Information is acquired and the transfer of Customer Information outside of Brafton Services. 

6.2. The copyright in all Content remains the property of Subscriber or of the copyright owners (as the case may be).  Under no circumstances will Brafton have any claim to copyright or ownership of any intellectual property rights in any Content.  

7. LIABILITY

7.1. Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BRAFTON BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON FOR ANY INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, FOR LOST PROFITS, LOST SAVINGS, LOST DATA OR OTHER SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF BRAFTON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

7.2. Absolute Cap on Liability. EXCLUDING BRAFTON’S RESPONSIBILITIES AS DEFINED IN SECTION 4.2, THE MAXIMUM AGGREGATE LIABILITY OF BRAFTON UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY THE PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY BRAFTON UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE DIRECT DAMAGES ACTUALLY INCURRED BY SUBSCRIBER UP TO THE AMOUNT PAID BY SUBSCRIBER TO BRAFTON UNDER THIS AGREEMENT FOR THE APPLICABLE PRODUCTS AND/OR SERVICES DURING THE PERIOD OF TWELVE MONTHS IMMEDIATELY BEFORE NOTIFICATION OF THE CLAIM (AND IF NO AMOUNT HAS BEEN PAID OR IS TO BE PAID TO BRAFTON, THEN THE LIMIT SHALL BE ONE HUNDRED DOLLARS ($100).

7.3. WARRANTY DISCLAIMER. THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND BY BRAFTON. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL PRODUCTS, SERVICES AND OTHER MATERIALS (IF ANY) ARE FURNISHED BY BRAFTON AND ACCEPTED BY SUBSCRIBER “AS IS”. ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY BRAFTON, INCLUDING WITHOUT LIMITATION ANY IMPLIED OR OTHER WARRANTIES OF OR AGAINST: (1) MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. 

7.4. Basis of the Bargain; Failure of Essential Purpose. SUBSCRIBER acknowledges that BRAFTON has set its prices and entered into this Agreement in reliance upon the Warranty Disclaimer and Limitation of Liability set forth in this Agreement, and that the same form an essential basis of the bargain between the parties. The parties agree that the Limitation of Liability specified in this Agreement will survive and apply even if the Warranty Disclaimer or any limitation of remedies is found to have failed of its essential purpose. Notwithstanding the foregoing, nothing contained herein shall limit BRAFTON liability for its own willful or wanton conduct.

8. Entire Agreement:

8.1. This agreement supersedes all prior agreements and is complete and exclusive.  No other information given by Brafton or on its behalf shall create a warranty or collateral contract, or in any way increase the scope of its liability and Subscriber may not rely on any such information.  Except as otherwise provided, no addition, amendment or modification shall be effective unless in writing and signed or accepted by Brafton.

9. Notice:

9.1. All notices under this agreement shall be in writing.  Notice shall be deemed given where (a) sent by email to notice@brafton.com and acknowledged by Brafton to have been received, or (b) sent by certified mail to Brafton’s headquarters as detailed at www.brafton.com/contact-us.  

10. Variation:

10.1. Brafton may modify these terms and alter charges at any time by 30 days notice, and if Brafton does so Subscriber may give notice to terminate this Agreement, to take effect immediately before such variation would otherwise take effect; if Subscriber continues to use the Service after such notice expires Subscriber is deemed to have accepted any such modification.

11. Law:

11.1. This Agreement entered into shall be exclusively governed by and construed in accordance with the laws of the United States and the Commonwealth of Massachusetts, without respect to its choice of law provisions, and the state and federal courts located in the Commonwealth of Massachusetts shall have exclusive jurisdiction over all disputes arising hereunder or in connection with the subject matter hereof. The parties hereby irrevocably consent to personal jurisdiction of such courts for such purpose and waive any right to allege lack of personal jurisdiction, improper venue or inconvenient forum in any such action brought in any such court.