BARROWS CONNECTED STORE ADVERTISING SERVICES TERMS AND CONDITIONS
These Barrows Connected Store Advertising Services Terms and Conditions (these “Terms”) govern Company’s (defined below) purchase of Services (defined below) from Barrows Connected Store US Inc, a Delaware Corporation (“Barrows”) with respect to the Order Form to which these Terms are referenced (the “Order Form”). Barrows and Company are each referred to in these Terms as a “Party” and together as the “Parties.”
DEFINITIONS
“Advertising Partner” means a retailer at which the In-Store Media is located where End Users shop for groceries and other products.
“Advertising Partner Agreement” means the agreement(s) between Barrows and the applicable Advertising Partner in relation to, among other things, the reselling of on-premise ad space in In-Store Media at the applicable Advertising Partner’s locations, as such agreement(s) may be amended, varied, replaced or restated from time to time.
“Ad Guidelines” means the advertising guidelines, policies and specifications of Barrows and the Advertising Partner, as made available to Company on the Barrows Platform or otherwise from time to time.
“Alcoholic Beverage Codes” means the Beer Institute Advertising and Marketing Code, the Wine Institute’s Code of Advertising Standards, and the Distilled Spirits Council of the United States Code of Responsible Practices for Beverage Alcohol Advertising and Marketing, each as amended from time to time.
“Alcoholic Beverage Laws” means any and all alcoholic beverage laws, rules, regulations, orders, directives, and/or advisory opinions from applicable alcoholic beverage control boards.
“Alcohol Beverage Products” means those beverage products regulated by and subject to Alcoholic Beverage Laws.
“Barrows Platform” means the software platform and applications owned or operated by Barrows through which Campaigns are booked, managed, published to and reported on the In-Store Media.
“Barrows Data” means any and all data or information (i) generated by Company’s use of the In-Store Media and Barrows Platform, and/or (ii) provided by Barrows to Company hereunder, including but not limited to Reporting Information, and any usage and performance data derived from Campaigns.
“Campaign” means the promotion of Company’s Product(s) as specified in the Order Form, beginning on the Campaign Start Date and ending on the Campaign End Date.
“Campaign End Date” means the last date the Campaign is run on the In-Store Media, as specified in the applicable Order Form.
“Campaign Start Date” means the first date the Campaign is run on the In-Store Media, as specified in the applicable Order Form.
“Company” means the entity so identified on the applicable Order Form.
“End User” means an individual viewer of the Campaign on the In-Store Media located at an Advertising Partner.
“Grocery Retailer” means a seller of grocery items, including packaged or fresh foods and beverages sold for off-premises consumption or health and beauty supplies sold directly to customers.
“Fees” means the fees and expenses specified in the applicable Order Form.
“In-Store Media” means the physical and digital displays and related technology owned and operated by Barrows and located at an Advertising Partner.
“Materials” means, collectively, Promotional Materials, software applications, literary works, other works of authorship, specifications, design documents and analyses, processes, methodologies, programs, program listings, programming tools, application programming interfaces, user manuals, documentation, reports, drawings, databases, machine readable text and files, and similar work product.
“Order Form” means any order form, including any purchase order, insertion order or similar document, entered into between Barrows, the Company and the Reseller which references these Terms for the purchase of Services.
“Product” means the Company’s product(s) identified in an applicable Order Form or otherwise included in Promotional Materials.
“Promotional Materials” means all promotional, advertising, marketing, display and other materials provided by or on behalf of Company to Barrows, including, but not limited to, products, product packaging, product names, slogans, logos, trademarks, plans, ideas, marketing claims, creative materials, artwork, layouts, works, content, data, images, photographs, graphics, multimedia, audio, video, audio-visual and other content, in any media or formats now known or developed in the future.
“Regulatory Event” means any notice, assertion, investigation (other than a routine inquiry), action or proceeding by or before any governmental authority alleging that a Campaign, or the operation of Campaigns at any Advertising Partner location, does not comply with any applicable laws (including, without limitation, alcohol beverage trade practice and tied-house laws), or seeking to restrain, limit or enjoin the same.
“Reporting Information” means data pertaining to the Campaign in the form provided by Barrows.
“Reseller” and “Reseller Agreement” have the meanings given in the Order Form.
“Services” means access and use by Company of the Barrows Platform and In-Store Media to run the Campaign to promote the Company Product(s) to End Users as specified in the applicable Order Form and the provision of Reporting Information and other management and administrative services with respect thereto.
“Term” means the period from the effective date of the applicable Order Form until the later of the Campaign End Date and the date on which all Fees have been paid in full.
SERVICES; PROMOTIONAL MATERIALS.
Services. During the term of a Campaign as specified in an Order Form, Company authorizes Barrows to access the Barrows Platform and run the Campaign featuring Company’s Products and Promotional Materials on the In-Store Media located at Advertising Partners as specified in the Order Form. Company is solely responsible for all: (i) the content of Campaigns, including but not limited to Promotional Materials; (ii) tailoring and targeting decisions of the Campaign; and (iii) the services and Products advertised in the Campaign. Barrows will run the Campaign in accordance with these Terms and the specifications set forth in the Order Form. Company authorizes Barrows to edit, modify, alter, and format the Promotional Materials to meet the specifications and policies of Barrows and Advertising Partner. Barrows may also make available to Company certain optional features to assist Company to tailor and target the Campaign to End Users. Company is not required to use these optional features and, as applicable, may opt-in to or opt-out of usage of these features. However, if Company uses these features, then Company will be solely responsible for such methods and results. Barrows retains the right to modify the Barrows Platform and the Services over time to include new or expanded components. Some new components may be discretionary, in which case Company may choose whether to subscribe to the new component. Other new components may be mandatory, in which case Company shall not have a choice whether or not to subscribe to the new component. Some new components may require additional fees.
Promotional Materials. Company must deliver all Promotional Materials to Barrows no later than [ten (10) business days] (which shall mean a day that is not a Saturday or Sunday or a public holiday in the state and/or country in which each Party has its principal place of business) prior to the Campaign Start Date, unless otherwise specified in the Order Form, and in the format specified or requested by Barrows. Company acknowledges it shall be liable to the extent any delays in such delivery result in a delay in Barrows’s fulfillment of the Services. All Promotional Materials are subject to approval and acceptance by Barrows and to the prior approval of the Advertising Partner (including approval of Company’s brand(s) and of each Campaign), which Advertising Partner approval is limited to whether the Campaign is consistent with its merchandising plans, operational requirements, applicable laws and the Ad Guidelines. Barrows shall not be obliged to run any Campaign unless and until such approvals have been obtained. If an approval is withheld or withdrawn other than due to Company’s breach, Fees for the affected portion of the Campaign shall not be payable (or, if paid, shall be credited), which shall be Company’s sole remedy. The approval and/or the promotion of Promotional Materials or a Campaign by Barrows will not be deemed (i) to be a statement or opinion by Barrows that the Promotional Materials comply with applicable federal, state and local laws, requirements, or regulations; or (ii) to render Barrows legally responsible or liable for any Promotional Materials. Company remains liable for all Promotional Materials. Company shall abide by all Barrows and Advertising Partner ad policies in effect and made available to Company on the Barrows Platform or otherwise provided to Company. Barrows reserves the right to reject use of Promotional Materials in whole or in part. Except as otherwise provided herein and subject to these Terms, Company hereby grants Barrows a non-exclusive, worldwide, royalty-free right and license to use and display the Promotional Materials, including without limitation Company’s trademarks, service marks, trade names, trade dress, slogans, taglines, and brand names (“Company Marks”) and any and all designs, artwork, domain names, copyrighted works, photographs, images, videos, audio, content, copy, product descriptions, and any and all other related intellectual property rights or right of publicity in the Promotional Materials (collectively, with Company Marks, “Company IP”), for the sole purpose of fulfilling its obligations under these Terms and providing the Services under these Terms and the Order Form. All goodwill arising from the use of Company IP in connection with the Services will inure to the benefit of Company.
Alcoholic Beverage Products. If Company’s Product or any Promotional Materials include Alcoholic Beverage Products, subject to Section 2.1, Company acknowledges that the Campaign may only run on In-Store Media through Advertising Partners in geographic regions (e.g. states or provinces) where Barrows determines it is permitted to run the Campaign based on applicable Alcoholic Beverage Laws; provided, however, Company shall remain solely responsible for compliance of the Campaign and Company’s Products with Alcoholic Beverage Laws. Barrows reserves the right to add or remove geographic regions in which the Campaign may run at any time in its sole discretion.
Alcoholic Beverage Ad Materials. Company shall ensure that all Promotional Materials that include Alcoholic Beverage Products: (a) comply with the Alcoholic Beverage Codes, Alcoholic Beverage Laws, the Ad Guidelines and all applicable laws, and do not infringe any third-party rights; (b) promote only Alcoholic Beverage Products and brands, with no direct or indirect reference to, or cross-promotion of, any non-alcoholic brand or product; (c) relate only to Alcoholic Beverage Products that are available for sale at the Advertising Partner locations at which the Campaign runs; (d) where they contain a URL or QR code linking to a site that collects personal data, are supported by Company’s collection and processing of such data in compliance with applicable data protection laws, and include information on how to access Company’s privacy policy; and (e) where Company is previously notified in writing by Barrows, do not direct End Users to any digital destination owned by a Grocery Retailer or its affiliates, other than the Advertising Partner’s own sites.
Removal and Suspension. Barrows may, without liability to Company, remove any Promotional Materials from display at any time (and in any event within twenty-four (24) hours of notice from the Advertising Partner) where Barrows or the Advertising Partner reasonably determines that they do not comply with these Terms, the Ad Guidelines, the Alcoholic Beverage Codes, Alcoholic Beverage Laws and any applicable laws. Barrows may also suspend, modify or relocate any Campaign, in whole or in part (including, without limitation, by replacing branded content with unbranded content or replacing Campaigns with “Coming Soon” digital slides), on the occurrence of a Regulatory Event or where Barrows reasonably determines that continuing the Campaign is likely to cause material regulatory risk. Where any removal, suspension, modification or relocation under this Section 2.5 or Section 2.6 is not caused by Company’s breach, Barrows shall, at its election, provide comparable make-good placements or reduce the Fees pro rata for the affected portion of the Campaign, which shall be Company’s sole remedy. Where it is caused by Company’s breach, the Fees shall remain payable in full.
Placement and Campaign Mix. Company acknowledges that: (a) the installation, number, type and placement of In-Store Media at Advertising Partner locations is determined by the Advertising Partner in its sole discretion, and Barrows may relocate, reduce or substitute placements without being in breach of these Terms; (b) Campaigns are not exclusive and will run alongside Campaigns for at least two (2) other unaffiliated alcoholic beverage brands; and (c) Barrows may decline to run Promotional Materials adjacent to the Advertising Partner’s own advertising for the same brand or product.
Reservation of Rights. Barrows reserves the right at any time to make changes or modifications to the Services or Barrows Platform, or revocation of the Services or Barrows Platform, including, without limitation, changes that are required: (a) for security; (b) by applicable law or regulation; or (c) as required under the applicable Advertising Partner Agreement then in force, or the policies, rules or guidelines of the applicable Advertising Partner from time to time. Company acknowledges and agrees that Barrows may discontinue or suspend any part of the Services or Barrows Platform at any time, provided that, subject to Section 2.8 below, Barrows shall refund Company any prepaid Fees for Services not rendered as of the effective discontinuation date, provided that such discontinuation or suspension is not caused by Company’s breach. Where it is caused by Company’s breach, the Fees shall remain payable in full. If any change, modification, or discontinuation of the Services or Barrows Platform is required, Barrows shall use commercially reasonable endeavors to implement any such change in a manner that does not materially degrade the delivery, display, measurement, or reporting of any Campaign under an applicable Order Form. If a change required materially impairs a Campaign under an applicable Order Form, Barrows shall notify Company promptly in writing and the parties shall work together, each acting in good faith, to mutually agree a solution with a view to substantially deliver on the Campaign under the applicable Order Form, in accordance with these Terms.
Force Majeure. Neither Party shall be in breach of these Terms or responsible for damages if a delay or failure is due to fire, earthquake, unusually severe weather, strikes, government sanctioned embargo, flood, act of God, act of war or terrorism, act of any public authority or sovereign government, civil disorder, delay or destruction caused by public carrier, or any other circumstance substantially beyond the reasonable control of the Party to be charged.
REPORTING INFORMATION
During the term of a Campaign as specified in an Order Form, Barrows shall, at Company’s written request, either (i) provide all such Reporting Information to Reseller, who shall then forward all such Reporting Information onto Company; or (ii) grants Company the right to access the Reporting Information available through the Barrows Platform. Barrows may provide Company additional Reporting Information in a form, manner, and at times as set forth in an Order Form. Reporting Information shall be considered Barrows’s Confidential Information.
FEES; PAYMENT. Company will pay Barrows for the Services as specified in an applicable Order Form. Unless otherwise specified in the Order Form, Fees are quoted and payable in USD, exclusive of taxes, within thirty (30) days of the invoice date. Amounts unpaid when due will accrue interest, in Barrows’s discretion, at a rate equal to the lesser of 1.5% per month and the highest rate permitted by applicable law. Company is responsible for paying all taxes applicable to receipt of the Services, except taxes based on Barrows income. Barrows reserves the right to suspend or terminate any Campaign for failure to timely pay fees and expenses. To the fullest extent permitted by applicable law, Barrows shall be entitled to collect any costs, expenses or reasonable attorneys’ fees resulting from the enforcement of this Section. If Barrows agrees to a Company request to send an invoice to a third party on Company’s behalf, Company agrees that it shall remain responsible and liable for such payment, and if such third party does not pay the invoice by the applicable due date, Company will immediately pay all such amounts to Barrows. Barrows may extend and/or revoke credit limits at any time in its sole discretion. Company must raise any dispute it has with an invoice within sixty (60) days of receiving such invoice. All amounts not timely and appropriately disputed in accordance with this section shall be deemed final and not subject to further dispute.
INDEMNIFICATION
Indemnification by Barrows. Subject to Section 5.3, Barrows will defend, indemnify and hold harmless Company from any and all damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, demand, judgment, or proceeding (collectively, “Claims”) brought by a third party alleging that the Barrows Platform infringes or misappropriates any third party intellectual property right. Notwithstanding the foregoing, Barrows will not be liable for any Losses resulting from Claims to the extent that such Claims result from (i) Barrows’ use of the Promotional Materials; (ii) Company's use of, or access to, the Barrows Platform not in accordance with these Terms; (iii) modification of the Barrows Platform (other than by Barrows), without Barrows’ written consent; or (iv) the combination, operation, or use of the Barrows Platform with other applications, product(s), services, hardware, or materials where the Barrows Platform would not by itself be infringing.
Indemnification by Company. Subject to Section 5.3, Company will defend, indemnify, and hold harmless Barrows and Advertising Partners, from all Losses resulting from any Claims brought by a third party arising from or in connection with (i) the Promotional Materials, including the infringement of an intellectual property right or right of publicity by any Promotional Materials or allegation that any Promotional Materials are false, misleading, or defamatory or that Promotional Materials are not compliant with any applicable regulatory or legal framework; (ii) the Product(s), including product liability allegations; (iii) breach of any of its representations, warranties, covenants or agreements contained in these Terms; (iv) any actual or alleged violation of Alcoholic Beverage Laws or the Alcoholic Beverage Codes arising from the Promotional Materials, the Product(s) or the acts or omissions of Company or its agents in connection with the Campaign; or (v) any allegation that the Promotional Materials, or Company’s collection or processing of personal data through any URL or QR code included in them, infringe or violate any intellectual property, privacy or data protection right of a third party. Advertising Partners are intended third party beneficiaries of this section.
Procedure. The indemnified Party will promptly notify the indemnifying Party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying Party’s obligations except to the extent such Party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying Party at the indemnifying Party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified Party agrees that the indemnifying Party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying Party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified Party without its prior written consent.
LIMITATION OF LIABILITY. BARROWS WILL NOT BE LIABLE TO COMPANY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, DAMAGE TO BUSINESS REPUTATION OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH ANY APPLICABLE ORDER FORM OR THESE TERMS. BARROWS’ ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY APPLICABLE ORDER FORM OR THESE TERMS, WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE AMOUNT PAID BY COMPANY TO BARROWS UNDER THE APPLICABLE ORDER FORM GIVING RISE TO SUCH LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
CONFIDENTIAL INFORMATION. “Confidential Information” shall include any non-public business, technical, financial or other proprietary information a Party (the “Receiving Party”) may receive from the other Party (the “Disclosing Party”) during the Term, including the terms and conditions of these Terms and the applicable Order Form. Both Parties agree to hold the other Party’s Confidential Information in confidence and not use such Confidential Information except to the extent necessary to exercise its rights or fulfill its obligations hereunder or disclose such Confidential Information to a third party. Each Party may disclose Confidential Information only internally to its employees and independent contractors who have a need to know such information and who are bound by obligations of confidentiality no less protective than those set forth herein. Barrows may also disclose Confidential Information (including any applicable Order Form) to the Reseller and to the Advertising Partner, in each case to the extent reasonably necessary for the performance or administration of the applicable Order Form, provided that Barrows shall not disclose Company’s pricing, Fees or payment information to the Advertising Partner. Confidential Information will not include: (i) information that is or becomes publicly available through no fault of the Receiving Party; (ii) was in the Receiving Party’s possession or known by it without restriction prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to the Receiving Party by a third party without restriction; or (iv) was independently developed by the Receiving Party without use of any Confidential Information of the other party. A Receiving Party may make disclosures of the Disclosing Party’s Confidential Information required by law or court order provided, to the extent legally permissible, it uses reasonable efforts to notify the Disclosing Party so that the Disclosing Party may try to limit disclosure and obtain confidential treatment or a protective order for that Party’s Confidential Information.
INTELLECTUAL PROPERTY; DATA OWNERSHIP. Company acknowledges and agrees that Barrows owns all right, title, and interest in and to the Barrows Platform and all derivatives and any modifications, updates, revisions or enhancements thereto, as well the Barrows Data (but excluding the Promotional Materials). Barrows reserves all rights not expressly granted hereunder. For purposes of clarification only, Barrows Data is Confidential Information of Barrows. Where Barrows produces creative assets for a Campaign at Company’s request (“New Assets”), then upon payment in full of the applicable Fees, Company shall own the final New Assets as delivered, excluding any Barrows templates, tools, formats, know-how and other pre-existing or generally applicable materials (“Barrows Materials”), which remain owned by Barrows; Barrows grants Company a non-exclusive, royalty-free licence to use the Barrows Materials solely as incorporated in the New Assets. Company’s indemnity under Sections 5.2(i) and 5.2(v) shall apply to New Assets only to the extent the Claim arises from Company IP or other materials supplied by or on behalf of Company.
REPRESENTATIONS AND WARRANTIES.
Company Warranties. Company represents and warrants that (i) it has the legal authority to enter into any applicable Order Form, be bound by these Terms and perform its obligations set forth herein; (ii) it has all necessary consents, licenses, authorizations, and rights required to perform its obligations under these Terms and provide the licenses herein; (iii) any authorized use of the Promotional Materials will not violate any applicable law or any third party agreements; (iv) it will at all times perform its obligations and exercise its rights under these Terms in compliance with all applicable laws, codes, regulations, and the policies and specifications of Barrows and Advertising Partner made available through the Barrows Platform or otherwise provided to Company, and, if Company’s Product is an Alcoholic Beverage Product, all applicable Alcoholic Beverage Laws; (v) it will hold and maintain all government licenses, permits, registrations, approvals, and the like, necessary to fulfil its obligations under these Terms, including, without limitation, as necessary to display the Promotional Material on the In-Store Media as contemplated herein; (vi) all advertising claims, content, copy, or messages contained in Promotional Materials (whether express or implied) will be accurate and supported by reasonable substantiation and will not be false or misleading; (vii) the Promotional Materials will not infringe, misappropriate or otherwise violate the rights of any third party or defame, libel or slander or harass or threaten any third party; (viii) it will not submit any Campaigns that violate applicable laws, codes and regulations, including applicable Alcoholic Beverage Laws; and (ix) the Campaign contemplated in an applicable Order Form is permitted to run on all retailers in which In-Store Media is located in the applicable geographic region and is not an exclusive Campaign for a specific retailer, a specific Advertising Partner, or in any specific location. Further, Company represents and warrants it will not, and will not authorize any third party to, (a) generate automated, fraudulent or otherwise invalid impressions, inquiries, clicks or conversions; (b) conceal conversions where they are required to be disclosed; (c) use any automated means or form of scraping or data extraction to access, query or otherwise collect information from the Barrows Platform except as expressly permitted by Barrows; or (d) attempt to interfere with the functioning of the Services.
Alcoholic Beverage Warranties.
Company represents and warrants to Barrows that (i) each applicable Order Form is in no way conditioned on any requirement or understanding that Barrows or any third party will require any Advertising Partner to purchase any alcohol beverage produced, sold or offered for sale by the Company; (ii) the Company does not expect or intend to induce the purchase by Barrows, any Advertising Partner, or any other third party or any alcohol beverage retail licensee of any alcohol beverage produced, sold or offered for sale by the Company; (iii) the Company has no agreement with any Advertising Partner or any alcohol beverage retail licensee related to or respecting each applicable Order Form.
Barrows represents and warrants to Company that (i) no monies paid by the Company under each applicable Order Form are intended to be or will be passed on by Barrows or any other third party to any Advertising Partner or any alcohol beverage retail licensee as an inducement to any such retail licensee to purchase any alcohol beverage produced, sold or offered for sale by the Company; and (ii) Barrows does not hold any licenses permitting the sale of alcohol beverages at retail.
WARRANTY DISCLAIMER. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, OTHER THAN AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES REGARDING THE SUBJECT MATTER OF EACH APPLICABLE ORDER FORM OR THESE TERMS TO THE OTHER PARTY, AND EACH PARTY (ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS), UNLESS OTHERWISE SPECIFICALLY SET FORTH HEREIN, HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING SUCH SUBJECT MATTER HEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, OR THAT THE ADVERTISING PLATFORM WILL BE ERROR FREE OR UNINTERRUPTED.
TERMINATION. All Campaigns are non-cancellable. Notwithstanding the foregoing, a Party may terminate these Terms if the other Party materially breaches these Terms and fails to cure such breach within ten (10) days after receipt of notice of such breach. Additionally, notwithstanding anything to the contrary herein or in any applicable Order Form, Barrows may in its sole discretion immediately suspend any Campaign if it determines that the Campaign violates or will likely violate any Alcoholic Beverage Laws or jeopardizes the ability of Barrows or an Advertising Partner to deliver Alcoholic Beverage Products to End Users, or on the occurrence of a Regulatory Event, in each case in accordance with Section 2.5. Sections 4 through 12 will survive any termination or expiration of these Terms.
BARROWS PLATFORM; SERVICES.
Feedback. In the event Company provides Barrows any feedback, enhancement requests or recommendations regarding the Services or the Barrows Platform (“Feedback”), Company hereby grants to Barrows a worldwide, perpetual, irrevocable, fully paid-up, royalty-free, non-exclusive license to such Feedback, including for use or incorporation into the Services or Barrows Platform, the rights to make derivative works therefrom or to otherwise commercially exploit in any way, without any restriction and without any payment.
Prohibitions. Company will not, and shall ensure its users will not: (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the software used in the Services, including the Barrows Platform; (b) provide, market, lease or lend the Services, including the Barrows Platform, to any third party except as expressly authorized hereunder; (c) remove any proprietary notices or labels displayed on the Services, including the Barrows Platform; (d) create a derivative work of any part of the Barrows Platform; (e) intentionally use the Services, including the Barrows Platform, for any unlawful purpose; (f) use any automated system or software, whether operated by a third party or otherwise, to extract any data from the Barrows Platform; or (g) introduce, post, or upload to the Barrows Platform any Promotional Materials that (i) are illegal under applicable law, rule, or regulation; (ii) violate any third party right, including intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; or (iv) promotes unlawful or illegal goods, services, or activities.
Beta Products; Tools and Materials. During the Term, Barrows may make available to Company certain experimental products and/or features (“Beta Products”). Notwithstanding anything to the contrary herein, Beta Products are provided as-is without any representations, warranties, or covenants of any kind and Company’s use of such Beta Products is at its own risk. Barrows reserves the right to modify or remove any Beta Products at any time in its sole discretion. Barrows offers tools and materials to optimize Advertising Partner experience on the Barrows Platform or provide additional context as to the advertising content being presented to the End User. Company agrees such tools and materials may include Company’s Promotional Materials or Company Marks.
Testing. Company acknowledges that during Barrows’ provision of the Services, in the ordinary course of business, Barrows may run experiments and tests on the Barrows Platform, including testing the placement of advertising and promotional offers. Barrows reserves the right to perform such experiments and tests.
GENERAL For all purposes under these Terms each Party will be and act as an independent contractor of the other and will not bind nor attempt to bind the other to any contract. Neither Party will have the right to assign these Terms or any applicable Order Form, in whole or in part, to a third party, except that Barrows may assign these Terms or its rights and obligations hereunder to an affiliate or to a successor to substantially all of the assets or business to which these Terms pertains. This contract and any dispute arising hereunder will be governed by the laws of the State of Delaware, USA without regard to its conflict of laws provisions. The parties agree any claims arising out of or related to these Terms shall be brought exclusively in the federal or state courts located in the State of Delaware, USA and consent to the personal jurisdiction of those courts. Any applicable Order Form and these Terms (and any attachments, exhibits or additional terms incorporated by reference herein) set forth the entire understanding of the Parties as to the subject matter herein and may not be modified except in writing executed by both parties. No terms or conditions including without limitation, pre-printed forms, purchase orders and/or clickthrough or shrinkwrap terms, whether or not signed by or accepted by Barrows, will apply, and all such terms shall automatically be null and void. Any notices in connection with these Terms will be in writing and sent by certified mail, major commercial rapid delivery courier service or email (with notices to Barrows sent to [notices email address]) to the address specified on the applicable Order Form or such other address as may be properly specified by written notice hereunder. In the event of any conflict or inconsistency between any applicable Order Form and these Terms, the applicable Order Form will control. The Reseller Agreement governs exclusively the relationship between Barrows and Reseller, and nothing in these Terms creates any obligation of Reseller to Company or of Company to Reseller. To the extent any approvals are required from the Advertising Partner pursuant to the applicable Order Form and/or these Terms, such approval shall be obtained and managed by Barrows only. For the avoidance of doubt, Company shall not be required to have any direct dealings with the Advertising Partner whatsoever unless otherwise authorized in writing by Barrows and subject, at all times, in compliance with any applicable laws.
UPDATE OF TERMS. Barrows may update these Terms and any applicable rates or Fees for the Services at anytime. Barrows will provide Company with advance notice of any changes to these Terms that are materially adverse to Company, by email, in-product message, posting on Barrows’ website, or any other method that Barrows reasonably deems practicable, and will indicate the effective date of such changes. The Company’s continued use of, or payment for, the Services on or after the effective date of the updated Terms constitutes Company’s acceptance of those updated Terms. If Company does not agree to the updated Terms, Company must cease using the Services as from the effective date of the updated Terms.
Updated: 6th October 2026
Tampa FL
33606
London
NW1 1LW
Westlake
Cape Town
7945
20 Mzimkhulu Drive
La Mercy
Durban
4405