BrandGraph™ Terms of Service
Updated February 28, 2020
IZEA Worldwide, Inc. (“IZEA”) owns and operates BrandGraph, a service that analyzes brand presence and social media reach across multiple Internet platforms (“BrandGraph”), both as a standalone software service located at brandgraph.izea.com and integrated into the IZEA Exchange (the “Platform”), an online marketplace that connects marketers with content creators on a variety of sites owned and operated by IZEA or its partners (the “Sites”).
Access to BrandGraph is made available under these BrandGraph Terms of Service (the “Terms”), as well as the IZEA Terms of Service and Privacy Notice (including the California Privacy Notice) which govern use of the Sites, as applicable.
BrandGraph is offered on a paid subscription basis and fees are nonrefundable.
IZEA is the exclusive owner of the Platform and all of the intellectual property rights associated with IZEAx, including software, copyrights, and other data not owned by Marketers or Creators (“IZEA Data”), even if IZEA incorporates into the Platform suggestions made by Marketer. Marketer shall not receive any form of compensation for ideas, modifications, suggestions or improvements made to the Platform. Except as expressly set forth herein, Marketer is granted no licenses or other rights in or to any IZEA Data or any use thereof.
If you do not agree to these Terms, please do not use BrandGraph. Accordingly, when you use BrandGraph, you should check the date of these Terms (which appears at the top of this document) and review any changes since the last version. The most current version of the Terms will be available at all times at brandgraph.izea.com.
In the Terms, (i) a “Marketer” means any person or entity who utilizes BrandGraph directly or by IZEA authorized personnel on behalf of Marketer for the purpose of analyzing a brand’s presence and social media impact across multiple websites and metrics, and (ii) “Affiliate” means any authorized entity or person that directly or indirectly controls or represents the Marketer. The term “control” with regard to this definition means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities, written voting rights agreement, written agreement, title or other influence. These Terms shall apply to all utilizations of BrandGraph.
You must be a Marketer or an authorized representative of a Marketer to register for BrandGraph. By registering for BrandGraph, you are representing and warranting that all information you submit is truthful and accurate, and that you agree to maintain the accuracy of such information. You understand and agree that IZEA will use any information you provide in accordance with the terms of the IZEA Privacy Notice (“Privacy Notice”), which is integrated into and included as part of these Terms. IZEA accounts are not transferable, assignable or resalable under any circumstances.
Unless otherwise agreed to in a separate contract between the parties, Marketer agrees to pay IZEA all charges made to Marketer’s account for agreed-upon fees or use of BrandGraph in accordance with these Terms. If IZEA does not receive timely payment IZEA reserves the right to either suspend or terminate a Marketer’s account, including deletion of any brand data already collected or processed. Upon termination, suspension, or discontinuation of Marketer’s access to BrandGraph, all outstanding payment obligations incurred by Marketer will become immediately due and payable.
All fees for BrandGraph are non-refundable. Marketer agrees to submit any disputes regarding any charge in writing to IZEA within thirty (30) days of such charge, otherwise such dispute will be waived, and such charge will be final and not subject to challenge.
If Marketer fails to make payment as set forth herein, Marketer will be responsible for all reasonable expenses (including attorneys’ fees and costs) incurred by IZEA in collecting such amounts. All prices are in United States dollars and are exclusive of all federal, state, municipal, or other government excise, sales, use, value-added, gross receipts, personal property, occupational, or other taxes in the United States or applicable territory, now in force or enacted in the future, and Marketer shall calculate and pay any such tax (excluding taxes on IZEA’s net income) that may be due or owing, now or at any time in the future. If withholding taxes or any other fees are imposed by any jurisdiction on the transactions pursuant to these Terms, Marketer shall pay such taxes to ensure that IZEA receives the full amount invoiced without offset or deduction.
3.2. CANCELLATION POLICY
IZEA does not offer any refunds on BrandGraph paid access accounts. Please be sure to read all available information about BrandGraph and IZEA’s offerings prior to establishing a paid access account.
After a paid access account is successfully cancelled, the paid access level will remain active for the duration of the paid and active subscription period.
3.3. CREDIT CARD CHARGES
If payment is made by credit card, Marketer authorizes IZEA to charge Marketer’s credit card, as approved and provided by the Marketer, in advance as payment for the subscription fees.
Marketer represents and warrants that it has the legal right to use any credit card utilized in connection with the Services. By submitting such information, Marketers grants IZEA the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by the Marketer. If the credit card provided was not authorized, then the account will be terminated. Marketer’s non-termination or continued use of BrandGraph reaffirms that IZEA is authorized to charge Marketer’s credit card.
IZEA reserves the right to modify, suspend or terminate the required method of payment for use of BrandGraph at any time, although any pending data analyses will be completed using the method current when the analysis was originally requested. If IZEA modifies the terms of the method of payment as outlined in this Section 3.3, the Marketer will be either be contacted by IZEA or the modifications will be reflected in an updated version of these Terms. If a user does not consent to such modified Terms, such user must immediately discontinue using BrandGraph. A user’s continued enrollment after any modifications constitutes its acceptance of the terms and method of payment as modified.
Unless Marketer or IZEA discontinues enrollment or participation in BrandGraph, Marketer understands that this pre-authorization is valid until the termination of these Terms or the applicable separate agreement with IZEA. For your future reference, you agree to retain, either by printing or otherwise saving, a copy of these Terms, which provides the terms of your pre-authorization.
4. UNAUTHORIZED USE
Outside of an API provided by IZEA, any attempt to access BrandGraph without authorization or by using another party’s account, automated programs, bots, screen scraping, database calls, human initiated data collection or any other means of gathering data, content or other information for the purpose of reverse engineering our Platform for commercial gain is strictly prohibited. Any manipulation of data or metrics reported in BrandGraph, is strictly prohibited. Any such unauthorized attempt will be prosecuted to the fullest extent under the law, and each action is grounds for termination of Marketer’s account in BrandGraph and/or termination for cause of any of Marketer’s agreements.
5. PROVISION OF SERVICES
IZEA is constantly innovating and changing its offerings in order to provide the best possible experience for its users. Marketers acknowledge and agree that the form and nature of the Services which IZEA provides may change from time to time without prior notice to you. Marketers acknowledge and agree that IZEA may stop (permanently or temporarily) providing BrandGraph (or any features or functionality of BrandGraph) to Marketers or to users generally at IZEA’s sole discretion, without prior notice to you. Marketers and/or IZEA may terminate these Terms and/or Marketer’s participation with BrandGraph at any time, for any reason or for no reason, and IZEA shall not have any liability regarding such decisions. Sections 3 through 14 of these Terms shall survive any termination of these Terms. In addition, IZEA has the ability to (i) modify user, account, or organization permissions at any level to add or remove users, or make any other changes as otherwise deemed reasonably necessary in the provision of services; and (ii) assume a user’s account for the purposes of troubleshooting and resolving issues.
6. REPRESENTATIONS AND WARRANTIES
Marketers utilizing BrandGraph represent, warrant and covenant that you have sufficient authority to enter into the Agreement and your use of BrandGraph is solely for lawful commercial and business purposes.
Marketer acknowledges and agrees that IZEA is not responsible for any aspect of the data referring to or incorporating the intellectual property of Marketer or other parties, as incorporated in BrandGraph and any reports or other data excerpts.
Marketer represents, warrants and covenants that: (i) all information it provides or approves or that is provided on its behalf in connection with the Terms is, and will be updated to remain, current and accurate; and (ii) it accepts that IZEA takes no responsibility for data or other information gleaned from third-party websites. Marketer acknowledges that non-IZEA websites are independent third-parties and not controlled by IZEA. As a consequence, any analysis of data obtained from third-parties may risk negative, unflattering, or even misleading or incorrect results about Marketer’s brand, product(s) or company. Marketer specifically acknowledges and agrees that IZEA has no control over any data that may be available or published on any third-party website (or otherwise), and that it takes no responsibility to correct any such data displayed in or published via BrandGraph.
7. TRADEMARKS AND COPYRIGHTS
BrandGraph may feature, display, or utilize certain images, logos, or other materials that are copyrighted or trademarked by third parties. IZEA’s usage of this intellectual property is governed by applicable fair use laws, and IZEA does not claim to own any interest in such intellectual property. All proprietary rights and goodwill in such intellectual property shall inure to the benefit of its owners. Nothing on these sites shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark, logo or service mark displayed thereon without the owner’s prior written permission, except via separate agreement or as may otherwise be described herein.
All other graphics, logos, designs, page headers, button icons, scripts, and service names appearing on the Sites are registered and unregistered service marks, trademarks, trade names, or trade dress of IZEA Worldwide, Inc. or its subsidiaries and affiliates in the U.S. and/or other countries (collectively, “trademarks”). IZEA’s trademarks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion. The images and icons available on our media page may be used by organizations and third-party sites in connection with journalistic promotion of our services; however, commercial applications are forbidden except where pre-approved in writing. All proprietary rights and goodwill in IZEA’s trademarks shall inure to the benefit of IZEA. The IZEA Sites and all of their content, including but not limited to text, design, graphics, interfaces and code, and the selection and arrangement thereof, is protected as a compilation under the copyright laws of the United States and other countries. IZEA reserves all rights not expressly granted in and to the Sites and their content.
IZEA retains copyright ownership of all reports generated through BrandGraph and Marketer must seek written permission before publicly publishing the report or any excerpts. IZEA does not indemnify Marketer or any of its authorized users for claims arising out of the use of such reports or the data contained therein.
Marketers agree to indemnify, defend, and hold harmless IZEA, its subsidiaries and affiliates, and its and their employees, officers, and directors (each, an “IZEA Entity” and collectively, the “IZEA Entities”), and each IZEA Entity’s licensors, organizations, licensees, consultants, contractors, agents, attorneys, owners, third party service providers and third parties authorized to conduct brand research and data analysis, from and against any and all third party claims, liabilities, costs and expenses, including reasonable attorneys’ fees (collectively, “Claim(s)”), that actually or allegedly arise out of or result from your Information or materials, unauthorized use of BrandGraph, or your breach of these Terms. You agree to be solely responsible for defending any Claim against or suffered by IZEA and/or any IZEA Entity, subject to IZEA and/or the IZEA Entity’s right to participate with counsel of its own choosing, and for payment of damages or losses resulting from all claims against IZEA, and/or any IZEA Entity provided that you will not agree to any settlement that imposes any obligation or liability on IZEA and/or an IZEA Entity without IZEA’s prior express written consent.
9. WARRANTY DISCLAIMER
MARKETERS EXPRESSLY AGREE THAT BRANDGRAPH IS AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND THAT YOUR USE THEREOF IS AT YOUR OWN RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IZEA DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY (i) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (ii) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (iii) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN BRANDGRAPH OR IZEA SITES, OR ANY PART THEREOF, (iv) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF BRANDGRAPH OR THE IZEA SITES, (v) WARRANTIES RELATING TO THE ACCURACY OR CORRECTNESS OF DATA, AND ANY OTHER WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY IZEA. FURTHER, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, THERE IS NO WARRANTY THAT BRANDGRAPH OR THE IZEA SITES WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT IZEA’S WARRANTY DOES NOT COVER TELECOMMUNICATIONS OR INTERNET OUTAGES CAUSED BY THIRD PARTIES OR OTHERWISE OUTSIDE OF IZEA’S CONTROL. BRANDGRAPH MAY BE LIMITED BY MANY FACTORS, INCLUDING INHERENT RISKS OF THE INTERNET.
BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES OR IMPLIED WARRANTIES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, IZEA’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
IZEA is not responsible for the accuracy or completeness of any information provided on its websites or supplied by its users. Use of the Platform or any of its features is at your own risk, and no indemnification will be provided by IZEA.
10. LIMITATION OF LIABILITY
ANY LIABILITY OF IZEA TO A MARKETER IN CONNECTION WITH THESE TERMS, REGARDLESS OF THE CAUSE OR FORM OF ACTION, SHALL BE STRICTLY LIMITED TO THE AMOUNT PAID BY MARKETER TO IZEA FOR THE SERVICES RELATED TO THE MARKETER’S USE OF BRANDGRAPH. MARKETER AGREES THAT MARKETER WILL NOT HOLD IZEA RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THESE TERMS, INCLUDING WITH RESPECT TO ANY BRANDGRAPH DATA THAT ORIGINATED FROM ANY THIRD PARTY.
THE FOREGOING LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF IZEA OR ITS AFFILIATES OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IZEA’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
IZEA may give general notices to parties by posting on its Sites, or by electronic mail to the e-mail address provided by a Marketer to IZEA. It is Marketer’s responsibility to ensure that its e-mail address and any other contact information provided to IZEA is updated, current and correct. It is a Marketer’s responsibility to also check these Terms to see if there has been a modification. All notices to IZEA shall be sent via nationally recognized overnight courier or certified mail, return receipt requested, to: IZEA Worldwide, Inc., 1317 Edgewater Dr. # 1880, Orlando, FL 32804 USA Attn: Legal Department Notices.
12. CHOICE OF LAW
These Terms shall be governed by and interpreted under the laws of the State of Florida, U.S.A. without regard to its conflicts of laws provisions. Marketers agree to submit to the exclusive jurisdiction of the state and federal courts located in Orange County, Florida. Any claim against IZEA arising from the Terms shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party. Marketers further agree that, to the extent allowed by applicable law, (i) any and all disputes, claims, and causes of action arising out of or in connection with the Terms, shall be resolved individually without resort to any form of class action; (ii) any claims, judgments and awards shall be limited to reasonable and actual out-of-pocket costs incurred, but in no event attorney’s fees; and (iii) under no circumstances will Marketers be permitted to obtain any award for, and Marketers hereby waive all rights to claim, punitive, incidental, indirect or consequential damages and any and all rights to have damages multiplied or otherwise increased and any other damages, other than damages for reasonable and actual out-of-pocket expenses.
13. ELECTRONIC ACCEPTANCE EFFECTIVE
These Terms set out the legally binding terms for use of BrandGraph. Marketers indicate acceptance of the Terms and all of the terms and conditions contained or referenced in these Terms by creating an account and accessing the Platform, and also when executing an Order Form. Please print and save a copy of these Terms for record-keeping purposes and be mindful that these Terms may be updated by IZEA at any time.
The Terms constitute the entire terms of service and understanding between the parties regarding the subject matter contained herein and supersedes all previous and contemporaneous terms of service, agreements, proposals and communications in all forms of media (including all instructions, advertisements, messages and policies), written and oral, between any party and IZEA regarding the subject matter contained herein. Only a written instrument executed by the party waiving compliance may waive the terms or covenants of the Terms. No waiver by either party of a breach of any provision hereof shall be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself. If any provision of the Terms is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of the Terms, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties to the Terms and has like economic effect. IZEA shall have no liability under the Terms by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, computer virus, Acts of God, war, governmental action, or any other cause that is beyond its reasonable control. The parties are independent contractors and nothing in the Terms shall be construed to create, evidence, or imply any agency, employment, business relationship, or joint venture between the parties. Marketer is not an employee of IZEA. Neither IZEA or Marketer shall have any right, power, or authority to create any obligation or responsibility on behalf of the other party. The Terms are not intended to benefit, nor shall it be deemed to give rise to any rights in, any third party. Marketers may not assign or transfer the Terms, or sublicense, assign or delegate any right or duty under the Terms without IZEA’s prior written consent. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. IZEA and its subsequent assignees may assign the Terms, in whole or in part, or any of its rights or delegate any of its duties, under the Terms to any party. Any rights not expressly granted in the Terms are reserved by IZEA, and all implied licenses are disclaimed. Headings used in the Terms are for reference purposes only and in no way affect the Terms. The term “including” is a term of enlargement meaning “including without limitation,” and does not denote exclusivity. IZEA may change the Terms and/or the Privacy Notice at any time upon notice published on its Site(s). Any use by a Marketer, their affiliates, agents, representatives, employees, or any person or entity acting on their behalf, of BrandGraph after such notice shall be deemed to be continued acceptance by them of the Terms and Privacy Notice, including any amendments and modifications thereto. All information or material in connection with BrandGraph must be submitted in the form requested by IZEA. IZEA reserves the right to discontinue offering, and/or modify BrandGraph at any time. Except as otherwise specified by IZEA, parties agree that they will direct all communications relating to BrandGraph or their participation therein directly to IZEA and not to any other entity. The organization, specifications, structure or appearance of any IZEA property or any page where a party’s information (including listings) may be displayed may be redesigned or modified at any time.