Terms of service

Update Summary: November 1st, 2024

Clarified that “we” and “us” includes the DBA Butterflyly and that we are the same company.
Corrected the references to Balloon Suite, which is a brand we own, to be AssetLab

Update Summary: May 1st, 2024

Updated default hourly rate and other fees.
Added clarity to the email marketing fee section for accounts with more than 999 contacts
Added clarity to reasons for termination by us
Added clarity to Google Ads service section
Added clarity to the Custom Website Projects section

Applicability

These Terms of Service (the “Agreement”) apply to users of our Website (the “Website”) who have created an account on the Website and who receive Services (as defined below) from Us (“AssetLab” and/or “Butterflyly”) through the use of a client portal reached by clicking on the “Sign In” button on the Website (the “Portal”).

Acceptance of the Terms of Service

These Terms of Service are entered into by and between you and KShift Inc (Doing Business As AssetLab and Butterflyly) (“Company”, “we” or “us ”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Service”), govern your access to and use of the Services, including any content offered on or through the Portal, if part of such Services.

Please read these Terms of Service carefully before you start to use the Portal or to receive or make use of any Services. By creating an account on the Website, or using the Services, you accept and agree to be bound and abide by these Terms of Service. Each time you access or use the Website, you are also subject to and agreeing to be bound by the Terms of Use posted thereon. If a conflict arises between the Terms of Use or Privacy Policy posted to the Website and the terms of this Agreement, the terms of this Agreement shall control.

Changes to the Terms of Service

We may revise and update these Terms of Service from time to time at our sole discretion. All changes are effective immediately when we post them.

Your continued use of the Portal or receipt of Services following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you. We will typically notify you of changes to terms of service via the Portal but we are not required to do so.

Services

After creating an account on the Website, you will be provided with access to the Portal, where you may (i) create a personalized website for yourself (the “AssetLab Site”), (ii) select what third party analytical tools you wish to use on your AssetLab Site, (iii) make use of certain available marketing, communications and fan outreach tools available to you on the AssetLab Site, (iv) select additional features available on the AssetLab Site, and/or (v) add products and services you wish to offer for sale on your AssetLab Site. The AssetLab Site capabilities and functionality are described at our Website (the “Documentation”).

The offering to you of the Portal, the hosting of the AssetLab Site (or causing the AssetLab Site to be hosted) to make it accessible to your invitees to your AssetLab Site, and providing the ancillary back-end services and support required to maintain the AssetLab Site in operation pursuant to the terms of this Agreement shall be referred to herein as the “Services”.

You will have the ability to select a password to log onto the Portal, which will give you access to the tools to manage your AssetLab Site. You will use a secure, unique password for your account. You are responsible for any activity that occurs through the use of your login credentials. If you become aware of or suspect that your user credentials have been compromised, lost or stolen, you must inform us immediately so that we may issue you replacement credentials.

The Services, including the features, content and look and feel of your AssetLab Site website, may change from time to time at our discretion. Your continued use of the Services, including the AssetLab Site, after such a change constitutes your acceptance to such modifications. If you have already chosen a particular look and feel of your AssetLab Site (a “Template”) when such changes occur, we may allow you to continue using that template after we discontinue its use by other, but we may also terminate your use in our discretion and at our option (in which case you will have to select a new template to continue making the AssetLab Site available to your invitees).

From time to time you may engage the support team to make changes to your website or other aspects of your services. When we make changes on your behalf you agree to pay our services fee for billable time based on our currently published rate on our Website. Charges for services are non refundable and must be paid up front using the payment method on file. When we complete a deliverable as part of a billable time you have 24 hours to review our deliverables and request changes before the work is considered final and complete. Our time to make changes to deliverables for any reason, including your dissatisfaction or changes in instructions, is also considered billable time. Any time working together to determine the detailed instructions or “scope” is also billable time. A billable time report will be provided at the time of billing.

We will provide the Services to you throughout the Term (as defined below) of this Agreement only.

Your Content

You are responsible for Your Content, including for uploading it to your AssetLab Site. You are also responsible for ensuring that Your Content is legally obtained. “Your Content” means all data and information which You upload or direct us to upload to the AssetLab Site, including: (i) contact information of your AssetLab Site invitees and all associated information about such persons; (ii) your files, such as your web pages, images, music, recordings, and videos; (iii) information about you and your products or services; (iv) your calendar information as maintained on the AssetLab Site; (v) your newsletters prepared on and sent through the use of the AssetLab Site; (vi) your emails to and from invitees to your AssetLab Site which are sent or received on the AssetLab Site; (vii) information about your products sold using the AssetLab Site e-commerce operations (but please see section “E-commerce on AssetLab” below for additional information on e-commerce functionality); (viii) your trademarks and service marks, (ix) information about your activities on social media linked to or visible from the AssetLab Site, and (x) the visual design of your website and any Content on your website (including when you direct us to create, use, or re-use a visual design).

We do not control or actively monitor Your Content. However we reserve the right at all times to remove or refuse to distribute any of Your Content which breaches our policies, and to terminate your rights to use the Services. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to support requests, or (v) protect the rights, property or safety of users and the public.

Additional Features

You may have the ability to engage partners through AssetLab and have those partners serve ads to your target audience, and to have them provide certain search engine optimization and search engine marketing tools. AssetLab Site also may allow you to select from several website analytics services, should you wish to use them. If you use any of these third party tools or services, you hereby represent that such activities are undertaken at your own risk. These third party tools and services are provided as a convenience only, and it is your responsibility to understand when, where or how their use is appropriate and legal.

You have the ability to post legal terms and conditions, and to post privacy notices or policies, on your AssetLab Site website. It would be advisable for you to engage legal counsel to advise you on whether you should post such notices or terms, and what information and disclosures such terms or policies/notices should contain.

You may be able to integrate some features of your AssetLab Site with social media, such as Facebook and Instagram. When doing so you acknowledge and agree that the terms of use or service of those social media sites apply to such integrations and to any information you send or receive from such sites. Please review those terms carefully before installing any such features or integrating any data between the AssetLab Site and those sites. We are not responsible for your use of these social media integrations or any data that you share with such third party platforms. You acknowledge and agree that you use the social media integration tools at your own risk, and you release us from all liability arising from your use of such sites.

You may be able to activate an Accessibility add-on to your service which assists with making your website more usable to more people. You use this Accessibility add-on at your own risk. There is absolutely no warranty or commitment or representation as to compliance with any law or regulation related to usability by any group or person. It is your responsibility to understand laws and regulations related to usability and accessibility in your jurisdiction and to assure that your website and public business presence meets any requirements.

Compliance with Laws

We agree to comply with all applicable United States laws in our performance of the Services. We also agree to comply with the requirements of the Payment Card Industry Data Security Standard (“PCI Requirements”), as applicable to us, which is designed to protect credit card information from unauthorized disclosure, theft or loss. For the protection of your AssetLab Site service those making purchases on the website, we will contractually obligate all payment processors we have control over to process credit card transactions on your behalf to also be compliant with PCI Requirements.

You agree that you will comply with all applicable laws in your use of AssetLab Site, and in your interactions with visitors to your AssetLab Site website, including providing all required notices (e.g., posting a privacy policy which informs about what information you collect from your invitees, and how you use such information), and complying with all other privacy and data security laws.

Service Updates and Upgrades

From time to time, we may develop updates or implement enhancements or other changes to your AssetLab Site. We will also from time to time modify the back-end software that runs your AssetLab Site. You specifically grant us permission to do this whenever we push an update, upgrade, bug fix or patch to all customers similarly situated to you. Occasionally, this will require the AssetLab Site to be unavailable to you or your visitors for a brief period of time. We apologize for the inconvenience this may cause, but unfortunately, we must perform these regular maintenance activities to maintain your AssetLab Site’s performance over time.

Digital Rentals

Specific terms relate to rentals of digital assets as follows.

The subscriber is not entitled to any benefits or services from AssetLab other than the receipt of communications from the indicated digital assets as part of the rental. The subscriber agrees that AssetLab has no legal liability related to the use of the rented asset of any kind for any reason. This includes issues such as spam, anything related to the content of communications, performance of resulting clients or customers. Subscriber agrees that all interactions sourced from a rented asset will be recorded. Nothing about this agreement is intended to transfer ownership of any asset. Brand names and trademarks owned by AssetLab may not be used in the subscribers’ marketing activities. The subscriber may use the brand name or trademark in responding to incoming communications but may not represent that they own the brand or mark or a related business. The subscriber agrees to a 6 month minimum term.

Domain Names

AssetLab will provide one (1) free domain name with the new purchase of a paid plan. The free domain name applies only to the following TLD’s: .com, .net, .org, .biz., if you sign up for a Service that includes this offering.

The domain name is yours to keep, except as otherwise set forth herein. We register the domain in AssetLab’s name, but will unlock and transfer it to your name upon cancellation of an active paid account, or upon request anytime during the term of your active paid account membership. Please note, however, that we do not have the ability to transfer a domain to you during the initial 90 days after we register it. Notwithstanding the foregoing, if a domain is in AssetLab’s name at the time that your account becomes inactive for any reason (including but not limited to non-payment or violation of these Terms of Service), any domain name in your account will remain registered to AssetLab. In this case, AssetLab has the right to retain the registration of the domain for its own purposes, sell or transfer the domain to a third party, or delete the domain and allow any new registrant to register it.

Except as otherwise stated herein, we will continue to renew your AssetLab Site domain name throughout the Term of this Agreement, provided you continue to timely pay all fees when due hereunder and are not in breach of these Terms of Service.

If AssetLab sends you the unlock code for a domain, it is your responsibility to transfer the domain to a new registrar, if you so choose. We will not renew domains after the end of the Term of this Agreement, so please keep that in mind when submitting your cancellation request or otherwise terminating this Agreement.

You may purchase additional domains, subject to availability, for the price shown on the website (which fee is subject to change from time to time in our discretion). Additional domains are not renewed automatically.

Under no circumstances will AssetLab be liable for any damages relating to domains, including but not limited to failure or errors in renewing, transfer, or registration of domains, even if such failure is ours.

Google Ads, Meta Ads

All Ads packages are sold with a minimum 3-month term. Payment may be offered as a monthly payment, annual payment or other period, but that does not apply to the minimum term of the agreement. A customer choosing a monthly payment is agreeing to pay for a minimum of 3 months, even if canceling the service prior to the 3-month date. Cancellation or termination of service prior to the minimum term expiration results in an immediate charge for the remaining balance for the full term.

Ads platforms are chosen by Us at our sole discretion and may include the Google and/or Meta platforms. You agree to pay for the advertising PPC cost directly to the ads platform(s) used.

Google Ads billing has two components: 1) Monthly cost for management and, 2) Budget level fee for budgets over $2000 (this amount may change without notice, the billing portal is always considered accurate for this purpose).

Ads packages sold after 8/1/2023 are provided in a specific geographic area; we may not accept clients with overlapping geographic areas and industries. In the event of an error in configuring geography exclusivity we will fix the problem as soon as practical once we are aware or we are notified of the conflict. There is no refund, partial or otherwise, for an error in configuring an ads account.

You agree to provide access at our request to various platforms so that we can deliver Ads management services. These requests may include a level of access requirement such as “Owner” or “Admin”, if so, this is necessary for Us to provide management services.

On cancellation the AssetLab team will remove all intellectual property from the Ads account assuming access is still available. The client is not authorized to continue using the targeting or campaigns or configuration of the account. In the event access to the Ads is not available to the AssetLab team the Client agrees to provide proof that all ad campaigns and targeting have been removed via screenshot or video within 5 days of the end of the service. Failure to do so may result in legal action by Us to protect our intellectual property. This section continues to be in effect after termination of the agreement as it protects our intellectual property.

E-commerce on AssetLab

The Services include the option for you to sell goods and services directly to invitees to your AssetLab Site. AssetLab provides the platform to offer sales, but all transactions occur at our third party transaction processors, for example PayPal or Stripe. All transactions are subject to the terms and conditions of Paypal or Stripe, as applicable, and you must have a PayPal or Stripe account independent of your account with us for the AssetLab Site in order to accept such payments. Further, AssetLab is not responsible for, and does not have access to, any aspect of transactions that happen on our platform aside from the items that were included in a specified transaction.

The Service allows integration with various third party systems that are separate from Us. From time to time there may be interruptions to the integration with a third party system. In very rare circumstances a problem with an integration may occur that cannot be solved and the integration may no longer be offered, without prior notice. You agree that we are not liable for any impact to your business from such an interruption.

By using any e-commerce components of the Services, you agree to not sell products that, in our discretion:

Infringe or potentially infringe on the copyrights of another person;

Constitute illegal or potentially illegal products;

Are offensive, violent, pornographic, or otherwise deemed inappropriate.

We reserve the right to disable or remove any products that are in violation of the terms of this Agreement without warning.

Professional Consultations and Opinions

In paying for a professional consultation you are requesting that a member of the team experienced in the area you are requesting expertise conduct an assessment of your business situation and provide detailed recommendations for next steps. You agree that all recommendations are opinions and are provided to you as educational material. It is entirely your decision to review and act on the recommendations provided based on your own assessment of the information provided and your business situation. We will decide the best format to deliver recommendations to you. We will decide what information or access to your business systems are needed to provide recommendations and you agree to provide that information and access. Your failure to provide information, access, or make yourself available when requested will be interpreted as your termination of the service at your own discretion and no refund will be issued.

Custom Website Projects

Custom website projects include the scope shown on the website. A subscription to one of the ongoing service plans is required to purchase a Custom Website Project, or within three months from the purchase date if we agree to offer the project before the subscription. The scope of these projects is fixed, any change requests or additional scope we agree to is billed at the then-current hourly rate. Custom website projects that are not completed within a period of 12 months are considered delivered as-is. There will be no further work or credit or refund expected or required for projects that are delivered as-is. Any further work or changes will be at the then-current standard hourly rate.

Your Additional Obligations

In addition to any other obligations you have as set forth in this Agreement, you agree that you will:

maintain an active email account on record with us at all times;
maintain at all times your own devices and resources to obtain access to the public Internet;
protect the confidentiality of your login credentials to the Portal and ensure that nobody other than you uses such credentials;
not use any other person’s login credentials;
not sell, resell, rent or lease the Services or the AssetLab Site or use it as a service bureau, or otherwise for the benefit of third parties (except that your invitees to the AssetLab Site may see Your Content and purchase your products and services as you make same available);
not impersonate any other person or group through or on the AssetLab Site;
not use your AssetLab Site to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or intentionally store or transmit material in violation of third party privacy rights;
not use profanity, obscenity, racist terms, or other language that may be offensive to visitors to your AssetLab Site;
not use your AssetLab Site to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs (collectively, “Harmful Code”);
not interfere with or disrupt the integrity or performance of our systems or networks or those maintained on our behalf for the purpose of providing services to our customers;
not copy, frame or mirror any part or content of the AssetLab Site;
not attempt to obtain a copy of, or disassemble, reverse engineer or decompile the AssetLab Site or any portion thereof;
not upload, post, email, transmit or otherwise make available on your AssetLab Site any material that interferes with or disrupts the AssetLab Service, or which probes, scans, or tests the vulnerability of any system or network;
not attempt to breach or circumvent any security or authentication measures;
not attempt to gain unauthorized access to any back-end systems, hardware, software or networks, which we maintain or are maintained on our behalf;
not access or attempt to access restricted portions of the AssetLab Site or our systems;
not download, copy, publish or distribute on the AssetLab Site any copyrighted or other protected materials without the specific written permission of the owner of such materials; and
not engage in denial of service attacks.

Fees and Payment

You agree to pay us in advance, based on the schedule of payments you agreed to when you signed up for a Service. You agree to keep a credit card on file in our payment platform at all times so that we may be paid in advance or when fees are due. All fees are non-refundable. Our pricing plans are set forth on our Website. Once you select your pricing plan, we will begin to charge you for the Services you selected.

Chargebacks. Credit card, PayPal or Stripe chargebacks will incur a fee of $350 to reinstate accounts. Accounts that incur chargebacks may be permanently deleted at our discretion. If you submit a Chargeback we may choose to terminate your services immediately.
Domain registration and setup fees are non-refundable.
Failed Payments and Past Due Payments. Failed payments or “declines” incur in a $50 fee per decline. You agree to pay on time. In the event of a failed payment we will assist you in completing payment by attempting notifying you of the failed payment. It is your responsibility to pay on time and to fix the payment issue as soon as possible. We may take action to restrict services or protect the Service from financial loss at any time after a payment fails. After 30 days of non-payment the agreement is considered Terminated, services ended. Domain registrations may not be available for transfer out after 30 days. We may remove any and all assets after 30 days of non-payment. If a payment fails or becomes past due we may choose to terminate your services immediately.
Reactivation After Failed Payment. Any past balance due will be charged to your payment method on file at the time of reactivation of a service. Additionally a Late Fee of 1% per month of overdue balance applies to all amounts past due. You agree that in the event of a failed payment and actions to restrict services due to that failure, no Credit or amount will be due from us nor liability related to loss of use from AssetLab since the act was due to your failed payment. Reinstatement requests or due to a successful payment will be reviewed, and if approved, reinstatement will be completed within 5 business days.
Taxes. The fees listed on our Website do not include applicable Taxes. “Taxes” means any sales, value added tax, use, and other taxes (other than taxes on either party’s income or assets), export and import fees, customs duties and similar charges imposed by any government or other taxing authority. If we think any Taxes apply to your receipt of our Services, we will charge you for those applicable Taxes when we charge you the corresponding fees. We agree to disburse all such Taxes to the applicable taxing authority on your behalf.
Billable Time. The default hourly rate is $350 USD per hour. When you ask for assistance from our team with any aspects of your subscription that is considered Billable Time. We typically charge for billable time weekly or less often. The payment method on file with your subscription will be charged at that time.

There are some additional fees specific to individual services as identified here:

Plans that include “email marketing” include an audience of up to 999 contacts on the account. There is an additional fee for additional contacts in groups of 1000 which will be billed monthly on your account based on blocks of 1000 contacts.

From time to time we may offer promotional codes or offers that apply a discount to service plans. Only one promotional offer or code may be used per new AssetLab Site subscription at a time; they may not be combined or stacked.

You acknowledge and agree that our fees may change from time to time, and when they change, the new fees will be posted to our Website. You agree to be bound by, and pay the new fees starting with your next payment, always subject to your termination rights as set in this Agreement. If we choose to update our fees but do not update the Fees due for your individual subscription it does not prevent us from changing them for your subscription at any time in the future.

If we provide a financial “Credit” to your account, that amount is considered a coupon to reduce the fee of service you are paying for as part of the current subscription. A Credit typically applies to the next monthly or annual payment or a payment for hourly services.

If you choose to Terminate service before using the Credit, the Credit is immediately removed from your account and no money is due to you because no future service is occurring on the account.
If your account experiences a failed payment or past due payment any Credit is immediately removed from your account and no money is due because of the time and expenses incurred by us to manage the failed payment and restriction of services.

Communications

By providing your phone number, you agree to receive text messages from Us. Message and data rates may apply. Message frequency varies.

By providing any other contact information you agree to receive communication from Us using that contact information. Standard rates may apply. Frequency varies.

Non Solicitation

During the Term of service and for twelve (12) months thereafter, you shall not, and shall not assist any other person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any person) for employment or engagement as an independent contractor any person then or within the prior six (6) months employed or engaged by AssetLab and involved in any respect with the Services or the performance of this Agreement.

Proprietary Rights

Our Website, the Portal and the AssetLab Site, and their entire contents, features, and functionality, including all trademarks, business names, information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof, but excluding Your Content (collectively, “Our Content”), are owned by the Company, its affiliates, their respective licensors, or other providers of such material and are protected by copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

We hereby grant to you, throughout the Term only, a worldwide (except in countries which are subject to legal restriction or embargo), limited, non-exclusive, non-transferable (except as permitted herein), non-assignable (except as permitted herein) license for (i) you and your invitees to access and view your individual AssetLab Site located thereon, and (ii) for you to make use of the Services as it pertains to your AssetLab Site as contemplated in the Documentation, provided you do so for your own purposes and not for the benefit of any third parties (except as otherwise specifically permitted herein or in the Documentation).

As between you and us, you exclusively own all right, title and interest in and to all Your Content. You hereby grant to us, our affiliates and our service providers a non-exclusive, non-transferrable (except as permitted herein), non-sublicensable (except as needed for our service providers to assist us in performing the Services), limited, revocable license, solely for the Term, to access, store, process, transmit, distribute and publish Your Content solely as required in order to provide Services hereunder.

You agree that we and our affiliates and service providers are permitted to collect, access, process, store, and use in perpetuity (i) any technical, aggregated information, including any information which may be attributable to any particular invitee to your AssetLab Site or to you (but not any information which may be considered personally identifiable information); (ii) information pertaining to how the AssetLab Site is browsed and searched, such as which features are used the most or are popular for some types of users; and (iii) all sales amounts processed through the AssetLab Site (but not to whom such sales were made); provided we do so solely to evaluate features of our Website and your and other AssetLab Sites, and for the purpose of improving our services.

You understand and agree that your AssetLab Site contains third party materials and services. Those materials and services are licensed to you solely for use on the AssetLab Site as contemplated in the Documentation and only for so long as the owners of such materials and services permit us to make them available to you. You acknowledge and agree that if the owner of such materials or services terminates our license or right to make them available to you, they will be removed from the AssetLab Site, and you accept this risk.

The Services are licensed, not sold. Except for the limited rights expressly granted by each of the parties hereunder, no other rights are granted. All rights not specifically granted herein are otherwise reserved.

Each party agrees to refrain from any use or registration of the trademarks of the other party, or of any confusingly similar marks, except with respect to any trademarks included within the AssetLab Site which you upload (in which case you grant to us a limited license to display, publish, and process such trademark as part of Your Content). If you add your name to our client list, you also grant us a right to use your name on such a list, and to display, publish, and process your name as you enter it in furtherance of our business.

Term and Termination

The term of this Agreement begins on the day you sign up to receive the Services by creating an account on our Website, selecting a pricing package, and paying your first monthly installment of recurring subscription fees (the “Effective Date”). This Agreement will continue in effect until either party terminates pursuant to the terms of this Agreement (the “Term”).

You can upgrade/downgrade your Service at any time by going to the Portal and changing your plan after signing in. We will credit you the prorated amount of days of the new plan. However, we cannot provide refunds or cash credits for downgrades.

You may request termination of this Agreement at any time. To do so, you must open a support ticket by emailing our published support team email address or opening a ticket from the Portal in the Get Help section. Cancellation requests submitted in any other way will not be accepted. The Cancellation request will be reviewed to determine if it is an option for your service based on the terms. Cancellation must be submitted a minimum of two (2) business days prior to the rebilling date to prevent rebilling of the non-refundable subscription fee.

We may terminate your access to the AssetLab Site and use of any Services immediately (i) if you breach any provision of this Agreement, (ii) if you fail to pay recurring fees when due, (iii) if we lose any right or license required for us to make the Services or the AssetLab Site available to you or your invitees, (iv) if we cease providing Services to our general customer base or we make material modifications to the Services; (v) if required to do so by law, or due to a change in applicable law; (vi) if you violate the law or these Terms of Service; (vii) if unexpected technical, security or legal issues or problems arise, or (ix) if in our sole determination you are not acting or interacting with us in good faith which may include threats, disrespectful communication, or any other act or interaction we determine is not in good faith.

Upon termination of this Agreement for any reason, (i) you will lose the right to access the Portal and the AssetLab Site, (ii) we will promptly delete your AssetLab Site and all of Your Content, except as required by law, and (iii) you must pay any outstanding amounts you owe us for use of Services throughout the Term. Please plan your cancellation of this Agreement accordingly.

Provisions of this Agreement dealing with confidentiality, representations or warranties, indemnities, limits on liability and any provisions set forth in the “Miscellaneous”

Section below shall survive termination of this Agreement.

Confidential information

Each party (the “disclosing party”) may disclose to the other party (the “receiving party”), Confidential Information during the course of performance under this Agreement. “Confidential Information” means any data, files, content, copy, materials and information which is not public and which is disclosed by the disclosing party or on such person’s behalf, to the receiving party or an affiliate or service provider of such party, either directly or indirectly, in writing (including electronically) or orally, and which a reasonable person should understand, based on the content or means of disclosure, to be confidential or proprietary. Your Content shall be considered your Confidential Information. Our Website content, Website look and feel, the AssetLab Site skins and their look and feel, and all graphic and other elements of our Website and the AssetLab Sites (excluding any which you uploaded to the AssetLab Site), our business methods, pricing models and methodologies, and business processes, shall be considered our Confidential Information.

The receiving party will: (i) hold the disclosing party’s Confidential Information in confidence and use reasonable care to protect the same; (ii) restrict disclosure of the other party’s Confidential Information to those of its affiliates, employees, service providers or agents with a need to know such information and who are under a duty of confidentiality respecting the protection of such Confidential Information; and (iii) use the other party’s Confidential Information only for the purposes for which it was disclosed, or as otherwise permitted herein or pursuant to instructions from the disclosing party.

The above restrictions will not apply to Confidential Information to the extent it (i) is, or through no fault of the recipient has become, generally available to the public; (ii) was lawfully received by the receiving party from a third party without such restrictions and if such third party was not subject to a duty of confidentiality when it received the information; (iii) was known to the receiving party prior to receipt from the disclosing party, if it received such information not subject to a duty of confidentiality; or (iv) was independently developed by the receiving party without breach of this Agreement or access to, reference or use of the Confidential Information of the other party.

The receiving party may disclose Confidential Information to the extent the disclosure is required by law, regulation, or judicial order, provided that the receiving party will provide to the disclosing party prompt notice, where permitted by law, of such order and will assist the disclosing party in its efforts to contest or limit any required disclosure.

Data Security

It is your responsibility to comply with your obligations under applicable data protection laws when collecting, handling, uploading and processing personal data of your AssetLab Site visitors and invitees. In addition, as part of the Services hereunder, we will ensure that we and our service providers: (i) use commercially reasonable data security procedures and controls designed to protect Your Content from unauthorized use, loss, disclosure, theft or compromise.

If there is any theft, loss, loss of control over, access or discovery by or disclosure to a third party, or other event that results in an unauthorized third party obtaining access to, viewing, copying, transferring, transmitting, displaying, preventing authorized access to, or coming to control of any of Your Content (each such event, a “Breach”), and if such Breach occurs as a result of any action or inaction of ours or our service providers or from our systems, devices or networks, then we will, at our own expense (a) give you notice of such Breach as quickly as is commercially feasible for us to do so after becoming aware of such a Breach; (b) give you reasonably available information pertaining to such Breach, and where and how it occurred; (c) give you available information pertaining to Your Content that was lost, stolen, accessed, discovered, rendered inaccessible or disclosed; (d) perform forensic investigations and audits as reasonably required to identify the root cause and reasons for the Breach; (e) reasonably mitigate the effects of the Breach as promptly as is commercially feasible; and (f) take all corrective actions necessary to prevent the Breach from reoccurring.

Representations and Warranties

Each party represents and warrants to the other that: (i) it is duly organized and validly existing in the state of its organization or formation and that it has full power and authority to enter into and perform its obligations pursuant to this Agreement in accordance with its terms; (ii) this Agreement represents a binding and enforceable obligation of such party.

You represent and warrant that (i) Your Content does not infringe or misappropriate any rights of third parties; (ii) you have all rights, consents, or other permission necessary to upload Your Content to the AssetLab Site, and to collect, process, store, and use Your Content, including when using any communications or marketing tools made available through the AssetLab Site (e.g., when sending newsletters, when communicating with your invitees to the AssetLab Site in blogs or other areas of the AssetLab Site, when sending them emails, when using analytics tools made available to you on the AssetLab Site, when selling merchandise, when selling concert tickets, when disclosing information about concerts and events to users of the AssetLab Site, etc.); (iii) you have obtained all consents, rights and permissions necessary to allow the Company and its service providers to access, use, host, collect, store, process and manipulate Your Content as required to provide the Services and pursuant to your instructions; and (iv) you are of legal age to execute contracts, and you have the right to bind all members of your musical/artistic group, to the extent you are not a solo artist.

YOU ACKNOWLEDGE AND AGREE THAT, EXCEPT AS OTHERWISE STATED HEREIN, WE DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES, AND SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WE DO NOT WARRANT THAT THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE.

EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, THE SERVICES (INCLUDING YOUR AssetLab Site), OUR CONTENT AND THE DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

Indemnification

Each party hereby agrees to defend, indemnify and hold harmless the other party from and against any action, claim, proceeding, lawsuit, demand, loss or expenses (including reasonable attorney’s fees and legal costs and expenses) arising or resulting from such party’s breach of its specific warranties herein.

We will defend, indemnify and hold you harmless from and against any action, claim, proceeding, lawsuit, demand, loss or expense (including reasonable attorney’s fees and legal costs and expenses) brought by a third party to the extent that the action is based upon a claim that our Services, Our Content or the Documentation (collectively, “Offerings”), or any portion thereof, infringes or misappropriate any U.S. or Canadian intellectual property rights of such third party. In addition, if the Offerings, or any part thereof, becomes, or in our reasonable opinion is likely to become, the subject of an infringement or misappropriation claim, we may, at our sole option and expense, either (i) procure for you the right to continue using the affected item, or (ii) modify the affected item so that it becomes non-infringing/not misappropriating. If none of the above options are reasonably available, we may terminate this Agreement or remove the feature or portion of the Offerings which is subject to the claim or possible claim.

Notwithstanding the foregoing, we shall have no liability for infringement or misappropriation under this section, if the alleged infringement or misappropriation arises directly from (i) the integration of the Offerings with other equipment or software that were not provided by us or reasonably foreseeable to be used in combination with or to be integrated with the Offerings, and if the infringement would not have occurred absent such integration; (ii) modifications made to the Offerings without our prior written consent; or (iii) use of the Offerings other than as contemplated hereunder, if such action would have been avoided but for such use, modification or combination.

You agree to defend, indemnify and hold harmless us, our affiliates and service providers, and all officers, directors, members or employees of any of the foregoing, from and against any action, claim, proceeding, lawsuit, demand, loss or expenses (including reasonable attorney’s fees and legal costs and expenses) arising or resulting from (i) your use of ads and other additional features available on your AssetLab Site; (ii) your activities in marketing or promotion of your goods or services to invitees on your AssetLab Site, including with respect to all communications you initiate and receive through the use of your AssetLab Site; and/or (iii) any challenge or claim relating to one of your domain names.

The party seeking indemnity pursuant to this section will promptly notify the party indemnifying in writing of the claim, and will grant the indemnifying party sole control of the selection of counsel, defense, and settlement of the claim. The indemnifying party will pursue defense or prosecution of all claims in a diligent manner. The indemnified party hereunder agrees to provide the indemnifying party with reasonable assistance, information required for the defense and settlement of the claim; provided, however, that the indemnifying party may not settle a claim in a manner that is adverse to the indemnified party or if such settlement requires acknowledging liability or wrongdoing by the indemnified party without such indemnified party’s prior written consent.

Limitation on Liability

UNDER NO CIRCUMSTANCES WILL WE OR OUR AFFILIATES OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES THAT RESULT FROM (I) YOUR USE OF OR YOUR INABILITY TO USE THE SERVICES, (II) PROPERTY DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE SERVICES, (III) ANY ERRORS OR OMISSIONS IN ANY MATERIAL ON THE WEBSITE OR ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE SERVICES, OR (IV) ANY LOSS OR CORRUPTION OF DATA, OR (V) USE OF ANY INFORMATION PROVIDED BY US. THESE LIMITATIONS SHALL APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY DOLLARS ($50) OR (B) AMOUNTS PAID BY YOU TO US IN THE PRIOR 12 MONTHS (IF ANY). THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY APPLICABLE LAW.

Miscellaneous

Assignment. You may not assign this Agreement or any of your rights or obligations hereunder, in whole or in part, without our prior written consent.
Subcontracting. We may subcontract any portion of the Services hereunder. You specifically consent to this arrangement.
Notices. We may send you notices through the AssetLab Site or via email. You must send us notices by contacting us via email at support@assetlab.us.
Severability. If any provision of this Agreement is held to be unenforceable, illegal, or void, that shall not affect the enforceability of the remaining provisions.
Waiver. The delay or failure of either party to exercise any right provided in this Agreement shall not be deemed a waiver.
Injunctive Relief. Notwithstanding anything else to the contrary herein, either party may seek injunctive in a court of competent jurisdiction without the posting of a bond.
Force Majeure. Neither party will be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including acts of God; earthquakes, storms, or other elements of nature; blockages; embargoes; riots; acts or orders of government; acts of terrorism; and war.
Construction. Paragraph headings are for convenience and shall have no effect on interpretation.
Governing Law; Dispute Resolution. This Agreement shall be governed by the laws of the State of Washington, without regard to any conflict of laws provisions, except that the United Nations Convention on the International Sale of Goods and the provisions of the Uniform Computer Information Transactions Act shall not apply to this Agreement. Any dispute, controversy or claim arising out of or relating in any way to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be exclusively resolved by binding arbitration in the City of New York. The arbitration shall be binding with no right of appeal. The arbitration shall be conducted pursuant to the rules of the American Arbitration Association. There shall be one arbitrator selected by agreement of the parties, or if the parties fail to agree, by the American Arbitration Association. The costs of arbitration, including the arbitrator’s fees, shall be borne equally by the parties to the arbitration, unless otherwise ordered by the arbitrator or agreed upon by the parties. The parties to this agreement further agree to abide by any award rendered by the arbitrator. Judgment on the award rendered by the arbitrator may otherwise be entered in any court having jurisdiction thereof.
Third Party Rights. Other than as expressly provided herein, this Agreement does not create any rights for any person who is not a signatory to it, and no person not a signatory to this Agreement may enforce any of its terms or rely on an exclusion or limitation contained in it.
Independent Contractors. The parties are independent contractors, and this Agreement creates no relationship of principal and agent, partner, joint venture, employer-employee or other similar arrangement. Neither party is an agent of the other, and each party agrees that it will not represent itself to be an agent of the other party or attempt to create any obligation or make any representation on behalf of or in the name of the other party.