Terms and Conditions
Last Updated: 11/29/2016
Welcome to the Brandboom.com website owned and operated by BlackCloset, Inc. (dba Brandboom) (hereafter, “Brandboom,” “we” or “us”). This Terms of Service agreement (the “ToS”) describes the terms and conditions applicable to your access and use of Brandboom.com and any tools, platforms, and applications offered therefrom (collectively, the” Site”) and the services offered through the Site (the “Services”). The ToS constitute a legally binding agreement between you and Brandboom and your use of the Site and/or the Services signifies that you agree to all of the terms and conditions set forth below.
If you are using the Site and/or the Services on behalf of a business entity, such as your employer, principal or client, you acknowledge and agree that you have the authority to bind such entity to the ToS.
THE TOS ARE INTENDED FOR ALL USERS OF THE SITE AND SERVICES, INCLUDING THOSE WHO ARE SIMPLY NAVIGATING THE SITE OR THOSE WHO REGISTER AN ACCOUNT.
HOWEVER, DIFFERENT SECTIONS OF THE TOS AFFECT USERS DIFFERENTLY, SO PLEASE BE SURE TO READ THESE TERMS AND CONDITIONS CAREFULLY.
Amendments to the ToS: Brandboom may amend this ToS at any time by posting the amended ToS on the Site, and you agree that you will be bound by any changes to this ToS by accessing or using the Site or any of the Services after the amended ToS has been posted.
Overview of the Brandboom Services:
Brandboom provides an online information and sales platform whereby sellers of products (“Sellers”) can manage their own product offers and customer relationships and connect with, provide various information and materials about product offerings, and sell those products to buyers (“Buyers”). While Brandboom provides these and other services to Sellers and Buyers and may facilitate transactions between them, please note: Brandboom is not directly involved in or otherwise a party to any transactions that may take place between Sellers and Buyers. Brandboom has no control over the quality, safety, or legality of any aspect of Sellers’ offerings or any claims made by Sellers about the products they offer, the truth or accuracy of warranties or pricing supplied by Sellers (via customized presentation, promotional materials or otherwise), or the ability of Buyers to pay for or meet other obligations to Sellers.
Brandboom does not conduct background checks regarding any users of the Site or Services. Brandboom is not a broker, agent or insurer for any Sellers or Buyers. We encourage you to communicate directly with potential transaction partners through the tools available through the Site and Services. All transactions entered into between Sellers and Buyers are made at each party’s own risk.
As a condition of your use of certain aspects of the Services, you must:
(b) register for an Account (defined below).
You are solely responsible for any internet connection fees that you incur when accessing the Services.
2. Accounts, Fees, and Security
There are two types of accounts available through the Services (each, an “Account”):
(a) “Buyer Accounts” which provides a user with buyer-only access to certain aspects of the Site and the Services free of charge; and
(b) “Seller Accounts” which permit access to seller-only features of the Services, such as the ability to upload Content (defined below) to the Services.
You must complete the Account registration process by providing current, complete and accurate information. If your contact and/or payment account information changes, you agree to promptly update the Account information to reflect those changes. Upon subscription to either Account, a User Account must be established to access these Accounts.
2.2 User Accounts.
“User Accounts” allow a user to access an established Seller Account and/or Buyer Account by providing certain requested information.
A Buyer Account can be created by providing an e-mail address and such users will be prompted to create a password for account protection.
While users who do not create a password for the account will be permitted to continue, such users are assuming the risk of unauthorized users accessing the account via that e-mail address. The registration of a Seller Account requires additional user information.
You may create only one (1) User Account. By establishing a User Account, you agree that only one user is permitted access to each User Account and the User Account may not be shared or accessed by others except for internal technical support purposes. Each User Account is permitted access to only a Buyer Account or Seller Account. User Accounts established for access to Buyer Accounts are free of charge and have access to all buyer-related Services.
User Accounts established for access to Seller Accounts fall under two categories: (a) “Free Users”, which allows limited access to certain aspects of seller-related Services free of charge; and (b) “Paid Users” which allows full access to all seller-related Services. A Free User may be converted to a Paid User at any time with the purchase of a Paid User subscription. A Paid User cannot be converted to a Free User. User Accounts may be added to a Seller Account at any time after you create your Seller Account.
There is no defined term for Buyer Account subscriptions or Seller Account subscriptions with only Free Users.
The term for a subscription to a Seller Account with one or more Paid Users (Paid Seller Account) may either be one (1) month or twelve (12) months as specified. This term begins when the first payment is made. All accounts are subject to termination or cancellation as set forth below.
The initial subscription fee for each Paid Seller Account is based on the term of the subscription and the number of Paid Users you initially designate that will have access to the Seller Account. Additional subscriptions fees for Paid Users that you subsequently add will be prorated for the remainder of the subscription term in effect. When you submit an order for a subscription with Paid Users, you agree to pay all fees set forth in the subscription page and all applicable taxes. Each Seller Account is fully response for all charges incurred by any Paid Users associated with such account. All payments must be made in US Dollars. If you choose to be invoiced, payments are due thirty (30) days after the invoice date. If you choose to pay by credit card or debit card, the fees shall be charged to the account you provide us through the billing page. You agree that you will pay for all transactions you conduct through the Site or Services and that Brandboom may charge your credit card or payment account as provided by you when
registering for an account, including any taxes and late fees, as applicable, that may be accrued by or in connection with your account. You are responsible for the timely payment of all fees and for providing Brandboom with a valid credit card or payment account for payment of all fees at all times.
ALL PAYMENTS ARE NON-REFUNDABLE, SUBJECT TO APPLICATION LAW.
2.6 Delinquent Payments.
Delinquent payments may accrue interest at the rate of 1.5% of the outstanding balance per month (or the maximum rate permitted by law, if less) from the date such payment was due until the date paid. Paid Account holders will be responsible for any costs incurred by Brandboom in collecting delinquent amounts. Brandboom may, without limiting its other rights and remedies, accelerate the payment obligations of a delinquent Paid Account so that such amounts are immediately due and payable, and suspend access to the Seller Account until such amounts are paid in full. Any account that has been suspended for a period longer than 30 days are subject to Account Termination as defined in section 2.8.
2.7 Account Security.
You are responsible for maintaining the confidentiality of all of your Account usernames and passwords. You agree to notify Brandboom immediately if you believe that an Account has been compromised.
2.8 Cancellation by You.
You may cancel any Account registered to you at any time by following the instructions on the Site.
2.9 Effect of Account Termination or Cancellation.
If you voluntarily terminate an Account or allow that Account to lapse at the end of its term, you may reactivate that Account at any time through the account interface on the Site. Accounts terminated by Brandboom for any type of abuse, including without limitation a violation of this ToS, may not be reactivated. In the event that you cancel a Seller Account:
(a) you are responsible for the balance of all unpaid fees under that Seller Account, which shall become immediately due and payable on the date of cancellation; and
(b) Brandboom has no obligation to maintain the Content (defined in Section 4.1) you have uploaded to and created on the Services. All User Accounts associated with the terminated or canceled Account also terminate.
3. Restrictions and Conditions of Use
You agree that you will not violate any applicable law or regulation in connection with your use of the Site or the Services. You may not connect to or use the Site and/or the Services in any way not permitted by this ToS. You agree that you will not
(a) become involved in any type of attack on the Site or the Services;
(b) attempt to gain unauthorized access to the Site, the Services or other Accounts;
(c) use any type of malicious software such as bots, spiders, viruses or other codes on the Site or the Services;
(d) create derivative works of the Site or the Services;
(e) copy, frame or mirror any part of content of the Site without the written consent of Brandboom;
(f) access the Services in order to build a competing product or service;
(g) attempt to reverse engineer any component of the Services; or
(h) sell, resell, lease, or the functional equivalent, the Services to athird party. You may not use the Site or the Services to develop, generate, transmit, post or store information (including, but not limited to Content) that:
(i) is defamatory, harmful, abusive, obscene or hateful; (ii) obstructs or otherwise interferes with the normal performance of another person’s use of the Site and/or the Services; (iii) constitutes harassment or threatens other people or groups of people; (iv) is harmful to children in any manner; (v) violates any third party rights, including, but not limited to, copyrights, trademarks, trade secrets, patents or the rights of privacy and publicity; or (vi) constitutes phishing, harming or impersonates any other person, or steals or assumes any person’s identity.
4. Seller Account Content
“Content” means any communications, images, sounds, and all the material and information that is uploaded or transmitted through the Site and/or the Services via a Seller Account. In order for us to provide the Services, if you have a Seller Account, you permit us to reproduce, distribute, transmit, publicly display and publicly perform Content that you upload or transmit through the Services via your Seller Account. You, not Brandboom, determine what Content to upload through the Service and who has access to your Content. Accordingly, you acknowledge that, except as otherwise expressly provided in this ToS, Brandboom has no obligation, whether of confidentiality, or otherwise, with respect to Content that you upload or transmit through the Services and Brandboom will not be liable for any use or disclosure of Content by any user of the Site or the Services that you permit access to your Content. Further, you (and not Brandboom) are responsible for (i) maintaining the confidentiality of any links, passwords or other means you provide to users of the Site for accessing your Content; (ii) notifying all persons to whom you provide any link, password or other means for accessing your Content of the confidential nature
of such link, password or other means of access and (iii) any and all use or misuse of your Content by any person to whom you have permitted access to your Content.
By uploading Content onto the Site, you (Seller) represent and warrant that you:
- are at least eighteen (18) years of age;
- are the sole author and owner of the intellectual property rights embodied in the Content or that you
have obtained the necessary waiver of any moral rights owned by any third party in any Content;
- are not posting any Content that includes threats to incite violence or that is defamatory, obscene,
indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable to a reasonable person;
- are at least eighteen (18) years of age;
4.2 Access to Content.
We do not, and cannot, pre-screen or monitor any Content. We do not assume any responsibility or liability for Content that is uploaded or transmitted by users of the Site and/or the Services. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, or remove any Content. We also reserve the right, at all times and in our sole discretion, to disclose any Content for any reason, including without limitation (a) to satisfy any applicable law, regulation, legal process or governmental request; (b) to enforce any of the terms of this ToS; (c) to protect our legal rights and remedies; (d) where we believe someone’s health or safety may be threatened; or (e) to report a crime or other offensive behavior. If you have a Buyer’s Account and are provided with a link, password or other means for accessing Content through the Services, you agree to maintain the confidentiality of such link, password or other means of access.
5. Modification or Termination of the Services
Limited License. By agreeing to the ToS, Brandboom grants you a limited license to access and use the Site and Services for your personal or business entity’s use only. You acknowledge and agree that you will not access, reproduce, duplicate, copy, sell, re-sell, visit or otherwise exploit for any non-personal purpose any content accessible via the Site or Services without the express written consent of Brandboom. You may not use, copy, adapt, modify, create derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, reproduce, transmit, stream, broadcast or otherwise exploit any aspect, feature or functionality of the Site or Services, except as expressly permitted in the ToS. You may not reuse any content or features offered through the Site or Services without first obtaining the written consent of Brandboom. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Brandboom or its licensors, except for the licenses and rights expressly granted in these ToS. Brandboom retains the right to determine whether or not your use of the Site or Services is consistent with the ToS. We may suspend, restrict or terminate your use of the Site or Services and to refuse any future use of all or portions of the Site or Services if your use breaches or fails to comply with any of the ToS. Additionally, we may seek any and all legal and equitable remedies available, including (a) seeking injunctive relief with any court of competent jurisdiction to enjoin any breach or failure to comply with any of the ToS; and/or (b) seeking damages relating to any breach or failure to comply with any of the ToS.
Brandboom may make changes to the Site and/or the Services at any time. Additionally, Brandboom may stop offering and/or supporting any of the Services at any time, provided, however, that Brandboom will use commercially reasonable efforts to provide you at least thirty (30) days’ notice prior to ending the Services. You understand that Brandboom may discontinue or restrict your access to and use of the Site and/or the Services without notice (a) if you have a Buyer’s Account or User’s Account for any reason, or (b) if Brandboom believes you have violated any of terms of this ToS.
You acknowledge and agree that all of the features, tools, data, functions and other aspects of the Site and the Services (other than Content) that are accessible through a Seller Account are the confidential information of Brandboom and you agree not to disclose any such information in whole or in part without Brandboom’s prior written approval. This obligation shall not apply to information that you can prove is not confidential because such information is: (a) already known to you without an obligation to maintain its confidentiality; (b) publicly known through no wrongful act by you; or (c) rightfully received from a third party without breaching an obligation to maintain its confidentiality. If you have a Seller Account, Brandboom agrees not to use or disclose to any third party, other than in connection with Brandboom’s operation of the Site and/or the Services, any confidential data or information clearly identified as “Confidential” that you transmit through the Services; provided, however, that Brandboom will not have any such obligation with respect to information or data that (i) is or becomes (not through Brandboom’s misconduct) publicly available, (ii) you disclose to a third party without such restrictions, (iii) is already known to Brandboom without confidentiality obligations, or (iv) is rightfully received from Brandboom from a third party without confidentiality obligations.
As between you and Brandboom, (a) Brandboom owns the Site and the
Services; and (b) if you have registered for a Seller Account, you own all Content that you upload or transmit through the Services via your Seller Account.
8. Links and Third Party Services
The Site may contain services (including the transmission of product orders to sellers) or links to websites operated by others. Brandboom provides these services and links as a convenience and your use of them is at your own risk. Brandboom is not responsible for any of the services provided by third parties or content available on the other websites and disclaims all liability relating to your access to and use of these websites. Please note that the services provided by third parties through the Site or the Services may be subject to terms of service provided by the operators of such services and you should review such terms of service prior to using or participating in such services.
9. Intellectual Property
Brandboom (and its licensors, where applicable) own all right, title and interest, including all related intellectual property rights, in and to the Site and Service (including the online platform and related tools and applications) and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Site or Services, in which you hereby assign all rights, title and interest to Brandboom.
The Brandboom name and the Brandboom logo are trademarks/service marks of Brandboom and no right or license is granted to use them. Unauthorized use of any Brandboom trademark, service mark or logo may be a violation of federal and state trademark laws. Nothing in the ToS constitutes a sale or conveys to you any rights of ownership in or related to the Site or Service or any intellectual property rights owned by Brandboom.
The Site and the Services are protected by U.S. and international copyright laws. Except for your use as authorized above, you may not modify, reproduce or distribute the content, design or layout of the Site, the Services, or individual sections of the content, design or layout of the Site without Brandboom’s prior written permission.
9.2 Copyright Infringement Notice.
All users of the Site and Services represent and warrant they shall comply with all applicable copyright laws. In the event, we receive proper notification of claimed copyright infringement, the response to such notice may include removing or disabling access to material claimed to be the subject of infringing activity and possibly terminating your account and/or the right to use our site. If you believe any materials on the Site constitutes an infringement of a copyright you own, you may file a notice of infringement to the contact identified below. A User who materially misrepresents that material is infringing will be liable for the costs incurred by us and our affiliates, including attorney fees. Accordingly, if you are uncertain whether you are or you represent the proper copyright holder or if copyright laws protect the subject materials, you are strongly advised to consult a qualified attorney at your own expense.
Any copyright infringement notification must be a written communication, transmitted by fax or regular mail, setting forth the following:
- a physical or electronic signature of the copyright owner or a person authorized to act on detailed identification of the copyrighted work claimed to have been infringed;
- identification of the material that is claimed to be infringing or to be the subject of their behalf;
- your contact information, including your address, telephone number, and email address; and
- a statement by you that you have a good faith belief that use of the material in the statement that the information in the notification is accurate, and, under penalty of perjury.
- Copyright Infringement Notifications should be emailed to [email protected] or mailed to:
1111 S Grand Ave PH4
Los Angeles, CA 90015
c/o Copyright Infringement Notifications
10. Disclaimer of Warranties
The information, recommendations and/or services provided to you on or through the Site and Services are for general informational purposes only and does not constitute advice. Brandboom does not guarantee continuous, uninterrupted access to the Site or Services. Although Brandboom attempts to maintain the integrity and accuracy of the information accessible through the Site and Services, we make no guarantees as to its correctness, completeness, or accuracy. Portions of the Site may contain typographical errors, inaccuracies, or other errors or omissions. Also, unauthorized additions, deletions, or alterations could be made to the Site by other users or third parties without Brandboom’s knowledge. The quality of the transactions requested through the use of the Site and Services is entirely the responsibility of the Buyers and Sellers. Brandboom under no circumstance accepts liability in connection with and/or arising from any goods, products or services provided by the Sellers or any acts, action, behavior, conduct, and/or negligence on the part of the Sellers and you hereby agree to release Brandboom from all liability and claims arising from the foregoing. Any complaints about the goods, products or services provided by the Seller should therefore be submitted to the Seller.
BRANDBOOM AND ITS AFFILIATES PROVIDE THE SITE AND SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK AND THAT BRANDBOOM AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT TO YOU THAT: (i) YOUR USE OF THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (iii) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SITE OR SERVICES WILL BE ACCURATE OR RELIABLE; AND (iv) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY ONLINE PLATFORMS, TOOLS OR APPLICATIONS PROVIDED TO YOU AS A PART OF THE SERVICES WILL BE CORRECTED. BRANDBOOM AND ITS AFFILIATES SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM BRANDBOOM OR ITS AFFILIATES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
11. Limitation of Liability; Sole and Exclusive Remedy.
Brandboom disclaims all liability and all losses relating to your use of the site and/or services. Without limiting the generality of the forgoing, Brandboom will not be responsible for, or have any liability resulting from, the conduct or misconduct of any buyer or seller with whom you interact through your use of the services.
Brandboom will not be liable under any circumstances for any indirect, incidental, special or consequential damages of any kind. In no event will Brandboom’s liability for direct damages exceed the amount that you paid to us during the six (6) months prior to when your cause of action arose. Some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages and, in such states or jurisdictions; Brandboom’s liability shall be limited to the fullest extent permitted by law.
Brandboom’s liability shall be limited to the fullest extent permitted by law. Notwithstanding the foregoing, the cumulative liability of Brandboom, its affiliates, agents and their respective officers, directors, employees and agents to you for any and all claims arising from or relating to these ToS and your use of the Site or Service, including without limitation, any cause of action sounding in contractor, tort or strict liability, will not exceed $100. This limitation or liability is intended to apply without regard to whether other provisions of the ToS have been breached or have proven ineffective or if a remedy fails for its essential purposes.
YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THE TOS FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THE TOS WOULD BE SUBSTANTIALLY DIFFERENT.
By using the Site or Service or any portion thereof, you agree to indemnify, defend and hold Brandboom and its affiliates harmless from any and all claims, demands and lawsuits and resulting liabilities, damages and losses, including reasonable attorneys’ fees and costs, resulting from or arising out of
a) your violation or breach of any term of the ToS or any applicable law or regulation, whether or not referenced herein;
(b) your violation of any rights of any third party, including Buyers or Sellers as applicable, or
(c) your use or misuse of the Site or Services.
No brokerage, agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship is intended or created by the ToS. Without limiting the foregoing, Brandboom is not acting and does not act as an agent or broker for any users (including Buyers and Sellers) of the Site or Services.
Brandboom may assign any of its rights or obligation under this ToS at any time to any other person or entity without your consent. You may not assign any of your rights or obligations under this ToS without Brandboom’s prior written consent, and any unauthorized assignment by you shall be null and void.
If any part of this ToS is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToS shall be given full force and effect.
This ToS shall be governed by and construed in accordance with the laws of the State of California, United States of America without regard to its conflicts of laws principles. Any legal proceeding arising out of or relating to this ToS will be subject to the exclusive jurisdiction of the California State and U.S. federal courts located in Los Angeles County, California and you consent to the personal jurisdiction and venue of such courts. You further agree not to bring any claim on a class action basis. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed. In the event any litigation is brought by either party in connection with this ToS, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred in the litigation.
Our failure to enforce any provision of this ToS shall in no way be construed to be a present or future waiver of such provision. The express waiver by us of any part of this ToS shall not constitute a waiver of any future obligation to comply with that part of the ToS. This ToS and all Account subscription pages that you submitted along with any written addendums to this ToS between Brandboom and you, collectively, constitute the entire agreement between you and us with respect to the Site and the Services. In the event of a conflict between the terms of this ToS and any Account subscription pages and/or written addendum to this ToS, the terms of the Account subscription pages and/or the written addendum shall control and prevail.