Terms of Service
Last Updated: March 9, 2020
The Services are owned by Butterly, a division of ChickAdvisor Inc. (“Butterly”, "us", "we", or "our"). We develop, market, and license Butterly as a software as a service, and provide it for use subject to compliance with this Agreement.
“Brand(s)” means individuals or businesses who register to use the Services to create and execute programs managed by the Butterly platform, and to manage the participants who engage with the technology as designed.
“Butterly Administrator(s)” means Butterly employee(s) and agent(s) who performs the necessary operations, technical support, administrative support, business development support, and any other Butterly internal functions on behalf of Brands, Campaign Operators, or Participants.
“Campaign” means any marketing campaign or digital form offered by a Campaign Operator by use of the Services, including contests, sweepstakes, quizzes, promotions, sampling activities, surveys, interactive widgets, and other types of web sites and applications.
“Campaign Analytics” means business intelligence data about one ore more Campaigns generated by use of the reporting or tracking capabilities of the Service.
“Campaign Design Materials” means content which Campaign Operator elects to display as part of the “look and feel” of a Campaign, including text, video, artwork, graphics, (including logos or trademarks), photography, audio, code, and hypertext links. Campaign Design Materials excludes Campaign Participation Data and Campaign Analytics.
“Campaign Limitations” means the limitations on Services set forth in the published materials, including duration of Campaigns, the number of Campaigns, maximum number of Participants in Campaigns, or the number of Campaign Operators who may access Butterly to operate Campaigns.
“Campaign Operator” means the person, entity or Brand identified as a party to this Agreement.
“Campaign Operator Data” means Campaign Participation Data, Campaign Analytics, and Campaign Design Materials.
“Campaign Participation Data” means (i) the data created by Participants interacting with the Services (such as visits, clicks, shares, votes, responses, and form submissions); (ii) content from Participants (such as photos, videos, or text); and (iii) any content from Third Party Sites stored in the Services related to Participants (such as Twitter or Instagram content). Campaign Participant Data may include Participant Personal Data.
“Effective Date” means the effective date of this Agreement as set forth on the Order.
“Hosting Environment” means the hardware, software and networks used by Butterly to host the Services.
“Managed Services” means the Campiagn Design Materials that Butterly employees and/or agents create on behalf of Campaign Operators, including text, video, artwork, graphics, (including logos or trademarks), photography, audio, code, and hypertext links.
“Participant(s)” means individuals who subscribe to the programs hosted by Butterly, and complete the tasks required by the program(s) designed by Brand(s).
“Participant Personal Data” means all individually identifiable information created, collected, stored, transmitted or processed pursuant to the services performed under this Agreement, but excludes individually identifiable information of Butterly’s or Campaign Operator’s own employees and agents.
“User(s)” means Brands, Campaign Operator(s), Participant(s), or Butterly administrators.
“User Content” means any data information, content, records, files, text, images, video, audio or other multimedia, software or other information or material that Users load, receive, or transmit through the Services.
2. Changes to this Agreement
You are advised to review this Agreement periodically for any changes. Changes to this Agreement will be effective immediately upon posting. Any use of the Services after posting will constitute as acceptance of such new agreement.
3. About our Services
Butterly offers a web-based, administrative portal for Brands to create, launch, and manage Campaigns, as well as evaluate Campaign Participant Data.
The Services route questions to available Pros, such that Consumers may ask questions regarding products they wish to purchase, and Pros may provide their opinions and advice on said products in real time.
The Services also allow Brands to manage the onboarding, training and payment of Pros, such that Brands can ensure that Pros are knowledgeable and certified to continue supporting the Brand’s products and are remunerated for their marketing efforts.
4. License of Services
Subject to the terms and conditions of this Agreement, Butterly hereby grants to Campaign Operator during the Subscription Term the non-exclusive and non-transferable right to access and use the Services solely for Campaign Operator’s business purposes and for the purposes set forth in this Agreement. All right, title to and interest (including all intellectual property rights) in the Services remains exclusively with Butterly. During the Subscription Term, Butterly will deliver the Butterly platform and provide any updates that Butterly makes generally available.
As applicable, we reserve all our intellectual property rights, which include without limitation all copyright, trademark, domain names, design, rights, database, rights, patent, trade secrets and all other intellectual property rights of any kind, whether registered or unregistered anywhere in the world.
Campaign Operator acknowledges and consents that Butterly may engage with third parties to deliver and conduct the Services under this Agreement. Butterly will provide a current list of third party partners to Campaign Operator, on request.
Nothing in this Agreement grants you any rights in the Services, other than as necessary to enable you to access and use the Services in compliance with this Agreement. You agree not to adjust to try to circumvent or delete any intellectual property notices contained within the Services.
5. Restrictions on Use
Campaign Operator shall not, and shall not permit any third party to, except as expressly set forth in this Agreement, (i) sell, resell, lease, time share or transfer the Services for the benefit of any third party; (ii) use the Services to collect, store, transmit or process any Participant Personal Data; (iii) knowingly or negligently send, store, publish or transmit through the Services any malicious or misleading content or code, including without limitation viruses, trojan horses, phishing routines, or other routines intended to intercept any data or personal information of another party; (iv) use the Services in a manner that exceeds the Campaign Limitations; (v) remove or alter any copyright, trademark or other notices included in the Services; (vi) use the Services except as expressly permitted in this Agreement; (vii) use the Services to conduct, publish or disclose any competitive benchmarking tests or analysis; (viii) use the Services to disparage, malign or impugn any third party; (ix) interfere with or disrupt the integrity, security or performance of the Services; (x) attempt to gain unauthorized access to the Services or related systems or networks; (xi) access the Services in order to build a competitive product or service; (xii) attempt to reverse engineer the Services, or (xiii) knowingly or negligently circumvent or defeat security features of the Butterly platform (for example: by exposing or publishing private passwords or access tokens).
6. Campaign Operator’s Responsibilities
7. Butterly Data Safeguards
Butterly will use commercially reasonable efforts to maintain administrative, physical and technical safeguards for the protection, confidentiality and integrity of Campaign Operator Data. Campaign Operator acknowledges certain security features in the Butterly platform are capable of being circumvented or defeated by Users, and certain security features are dependent on and controlled by Third Party Sites on which Butterly relies (for example, access tokens for Third Party Site APIs).
8. Data Use
10. Licenses, Fees, and Payment Terms and Taxes
11. Proprietary Rights
12. Warranties; Disclaimers
BUTTERLY ASSUMES NO LIABILITY WITH RESPECT TO SECURITY INCIDENTS OR ERRORS CAUSED BY (i) USERS’ CIRCUMVENTION OR DISABLEMENT OF SECURITY FEATURES; (ii) USERS’ FAILURE TO MAINTAIN THE CONFIDENTIALITY OF THEIR PASSWORDS; (iii) THIRD PARTY SITES; OR (iv) UNFORESEEN CAUSES NOT REASONABLY PREVENTABLE BY BUTTERLY. CAMPAIGN OPERATOR BEARS ALL RISK WITH RESPECT TO THE COLLECTION OF ANY BARRED PERSONAL INFORMATION OR ANY INFRINGING, LIBELOUS, UNLAWFUL OR TORTIOUS MATERIAL IN THE CAMPAIGN OPERATOR DATA, INCLUDING MATERIAL HARMFUL TO CHILDREN. THE SERVICES ARE NOT DESIGNED AS COMPLIANCE TOOLS, AND BUTTERLY MAKES NO WARRANTY OR REPRESENTATION THAT THE SERVICES COMPLY WITH APPLICABLE LAWS OR REGULATIONS. CAMPAIGN OPERATOR IS RESPONSIBLE FOR ENSURING ITS USE OF SERVICES AND PARTICIPANT PERSONAL DATA COMPLIES WITH APPLICABLE LAWS OR REGULATIONS.
13. Limitation of Liability
IN NO EVENT WILL BUTTERLY AND/OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBSIDIARIES, OTHER AFFILIATES, SUCCESSORS, ASSIGNEES, AGENTS, REPRESENTATIVES, ADVERTISERS, MARKETING PARTNERS, LICENSORS, INDEPENDENT CONTRACTORS, RECRUITERS, CORPORATE PARTNERS OR RESELLERS BE LIABLE FOR DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, LOST REVENUE OR PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, REPUTATION, AND/OR ANY OTHER DAMAGES, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, AND/OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THE USE OF OR RELIANCE ON THE SERVICES AND USER CONTENT, OR INTERACTIONS WITH OTHER USERS OF THE SERVICES, WHETHER ONLINE OR OFFLINE.
NOTWITHSTANDING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL OUR AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS EXCEED THE AMOUNT YOU PAID US FOR ACCESS TO AND USE OF THE SERVICES AND USER CONTENT. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
You agree to indemnify, defend, release and hold harmless Butterly, its officers, directors, employees, agents, affiliates, licensors and suppliers from and against all losses, liabilities, expenses, damages and costs, including reasonable legal fees, arising out of or in any way connected with: (a) any violation of this Agreement; (b) material submitted by you to Butterly, whether through the Services or otherwise, that violates any intellectual property, proprietary, contract, or other right of any third party; or (c) access to or use of the services (including negligent or wrongful conduct) by you or any other person accessing the Services using your account. You further agree that you will fully cooperate in the defense of such claims.
The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 2, Section 4, Section 9, Sections 12 to 22.
16. Entire Agreement
If any term or condition of this Agreement should be determined to be illegal, invalid or otherwise unenforceable, then to the extent such term or condition is illegal, invalid or unenforceable, it shall be severed and deleted from this Agreement and the remaining Agreement shall survive, remain in full force and effect and continue to be binding and enforceable.
You may not assign or transfer this Agreement, by operation of law or otherwise, without Butterly’s prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null and of no effect. Butterly may assign or transfer this Agreement, at its sole discretion, without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective heirs, administrators, executors, legal personal representatives, successors and permitted assigns.
19. Amendments and Waivers
No amendment or waiver of any provision of this Agreement shall be binding on either party unless consented to in writing by such party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, nor shall any waiver constitute a continuing waiver unless otherwise provided.
20. Force Majeure
Butterly shall not be liable for any breach of this Agreement by it to the extent that such breach arises from any act of God, war, national emergency, act of terrorism, riot, civil commotion, fire, explosion, flood, storm, epidemic, power outage, fuel shortage or any other similar cause beyond the reasonable control of Butterly.
21. Governing Law
This Agreement is governed by and interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. By agreeing to these Terms, you hereby irrevocably consent to the exclusive jurisdiction of the Courts of the Province of Ontario in the City of Toronto.
22. Contact Information