Terms of Service

Last Updated: December 21, 2021

Please read these Terms of Use (this “Agreement”) carefully as they govern the terms and conditions under which Users (“you”) may access and use the Butterly hosted pages https://butterly.com (the “Services”).

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.  

This Agreement includes our Privacy Policy, which is incorporated herein. Please note that your use of the Services constitutes your agreement to follow and be bound by the terms of this Agreement and the Privacy Policy. If you object to anything in this Agreement or the Privacy Policy, do not use the Services.

1. Definitions

“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 perform 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, Brand Ambassador or Brand Advocacy programs, quizzes, promotions, sampling and/or ratings & reviews activities, surveys, interactive widgets, and other types of web sites and applications.

“Campaign Analytics” means business intelligence data about one or 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.

“Campaign Terms” means the terms, conditions, and disclosures defined and communicated to Participants by Campaign Operator, governing a Participant’s participation in a Campaign, including privacy policy, eligibility requirements, rules and restrictions, identity and contact details of Campaign Operator, and consent to the collection and use of 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 Campaign 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

This Agreement, including the Privacy Policy, are subject to change and may be updated by Butterly, at its sole discretion, from time to time. We will notify you of any changes by posting the new agreement on the Website.

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.

Butterly also offers full turn-key program and community management on behalf of Brand partners.

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

1. Design and Operation of Campaign.  Campaign Operator is solely responsible for all activities required to design and operate the Campaign, including but not limited to (i) the creative design of a Campaign; (ii) configuring the Services to implement the Campaign parameters; (iii) obtaining any needed rights to creative assets or other content used in Campaign; (iv) operating each Campaign in accordance with the Documentation, the Order, applicable laws, and the terms and conditions of applicable Third Party Sites; (v) establishing and clearly communicating Campaign Terms to Participants; (vi) issuing all communications to Participants regarding the Campaign; and (vii) where applicable, selecting winners and obtaining at its cost all prizes.  Campaign Operator is responsible for the compliance of Users with all provisions of this Agreement.

2. Participant Personal Data.  If Campaign Operator uses the Services to collect, store, transmit, or process Participant Personal Data, Campaign Operator agrees only to do so in accordance with applicable law. Campaign Operator agrees to take all measures to protect the privacy and legal rights of Participants whose data is collected, and to provide them with a legally sufficient privacy policy. Campaign Operator must acquire consent for the collection and use of Participant Personal Data and disclose how the data will be used. If Campaign Operator downloads or transfers Participant Personal Data collected by the Services, Campaign Operator must do so securely, and in accordance with applicable law.

3. Transfer of Participant Personal Data Across National Borders.  Campaign Operator acknowledges and agrees that all Campaign Operator Data including Participant Personal Data will be stored and processed by Butterly in Canada.  If Campaign Operator reasonably expects to collect Participant Personal Data of individuals outside Canada, Campaign Operator agrees to take any necessary steps to ensure the lawful transfer of Participant Personal Data across national borders, the terms of which may be outlined in a separate agreement. Campaign Operator acknowledges that Butterly may block transfer of Participant Personal Data across national borders if it determines no adequate protection exists.

4. Collecting and Processing Special Categories of Personal Data.  Campaign Operator shall not use the services to collect, store, transmit or process any Special Categories of Personal Data, unless explicit consent is obtained from Participants in a manner consistent with applicable law, including where applicable article 9 of the EU General Data Protection Regulation.

5. Usage for Third Parties.  If Campaign Operator uses the Services to operate Campaigns on behalf of any third-party person or entity not a party to this Agreement, Campaign Operator is solely responsible for obtaining all necessary approvals from third-party for such use, and ensuring use of Services and handling of Participant Personal Data by third-party is in compliance with all provisions of this Agreement.

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

1. Use of Campaign Design Materials. Campaign Operator grants Butterly a limited, non-exclusive, royalty-free, worldwide license to host, display, and transmit the Campaign Design Materials commencing on the date Users upload or publish the Campaign Design Materials using the Services.  Campaign Operator is solely responsible for selecting, acquiring the rights to, monitoring, retrieving and disposing of all Campaign Design Materials.

2. Use of Campaign Participation Data. Campaign Operator grants Butterly a limited, non-exclusive, royalty-free, worldwide license to use Campaign Participation Data as necessary to provide the Services, including but not limited to the right to store and use Campaign Participation Data to: (a) generate and display Campaign Analytics to Users, (b) process Participant entries and (c) issue communications to Participants via email or by posting on Third Party Sites, only if and as initiated by Users.

3. Use of Participant Personal Data.  If Campaign Participation Data includes Participant Personal Data, or Campaign Operator elects to use the Services to collect and process Participant Personal Data, Campaign Operator will obtain all legally required consents from Participants necessary to allow Campaign Operator and Butterly to collect and process the Participant Personal Data.  Campaign Operator is solely responsible for complying with applicable Canada, US, EU, and local data privacy, gambling and other laws that govern the collection and use of Participant Personal Data. Campaign Operator agrees that any collection and use of Participant Personal Data from Third Party Sites requires Campaign Operator to comply with terms and conditions of applicable Third-Party Sites.   Butterly has no obligation to comply with the privacy policy of Campaign Operator, or to undertake compliance with laws applicable to Campaign Operator’s business or marketing activities.

4. Retention of Participant Personal Data.  Butterly agrees to retain Participant Personal Data created or received on behalf of Campaign Operator for only as long as necessary to conduct the Services under this Agreement, or as may otherwise be required under Applicable Law.

5. General Data Obligations.  Campaign Operator is solely responsible for the collection, accuracy, legality, and appropriateness of all Campaign Operator Data. Butterly is not responsible for any Campaign Operator Data which is delayed, lost, or altered during transmission across networks not owned and/or operated by Butterly or its agents.  Excepting destruction of Participant Personal Data, Butterly has no duty to retrieve or dispose of Campaign Operator Data, unless disposal is requested by Campaign Operator or the legal owner of the Campaign Operator Data in writing.

9. Butterly Privacy Policy

Campaign Operator’s access to, license and use of Services is strictly conditioned upon Campaign Operator’s consent to the terms and conditions of the Butterly Privacy Policy, as it may be amended and/or updated from time to time by Butterly.  

10. Licenses, Fees, and Payment Terms and Taxes

1. Licenses. Either Campaign Operator or Campaign Operator Affiliates may purchase a license of the Services.  If a Campaign Operator Affiliate is a party to a license or Campaign, all references in this Agreement to Campaign Operator will apply to such Affiliate. All Services are deemed incorporated into this Agreement.

2. Fees and Payment.  Campaign Operator will pay all fees specified for a license and any Managed Services added to a Campaign.  Unless otherwise stated: (i) fees are quoted and payable in Canadian dollars; (ii) fees are payable for the entire Subscription Term; (iii) Services licensed cannot be decreased during the relevant Subscription Term; and (iv) payment obligations are non-cancellable and non-refundable. Unless otherwise specified, all undisputed amounts are payable in full thirty (30) calendar days after the invoice date. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.

3. Payment Disputes. If Campaign Operator asserts a good faith dispute of any amount invoiced by Butterly, Campaign Operator must notify Butterly in writing of the dispute, in reasonable detail, no later than the payment due date.  Failure to issue written notice of a disputed invoice prior to the applicable payment due date will result in the invoiced amounts being overdue. The parties will cooperate diligently to resolve the dispute within a reasonable time.

4. Taxes. Campaign Operator will be responsible for all sales, use and other similar taxes resulting from Campaign Operator’s license or use of the Services, other than taxes based on Butterly’s income or revenues.  Campaign Operator will not withhold any taxes from any amounts due to Butterly.

11. Proprietary Rights

1. Butterly Ownership. Campaign Operator does not acquire any right, title or interest in or to any Services, the Hosting Environment or Butterly Confidential Information, except as expressly set forth in this Agreement.  Butterly does not grant any right, license or interest in the Services or in any of the patents, copyrights, trademarks, or trade secrets owned, used or claimed now or in the future by Butterly.  All applicable rights to the Services and/or such patents, copyrights, trademarks, and trade secrets are and shall remain the exclusive property of Butterly. Butterly shall have the sole and exclusive right to license the Services to its customers, resellers, distributors or other third parties at its sole option.  Butterly, in the performance of its obligations hereunder, may use its Confidential Information, including but not limited to its software programs, methodologies and/or processes. Butterly shall retain all right, title to and interest in its software programs, methodologies and/or processes.

2. Campaign Operator Ownership. Butterly does not acquire any right, title or interest in or to any Campaign Operator Data or Campaign Operator Confidential Information, except as expressly set forth in this Agreement.

3. Usage Data. All Campaign Operator Data is, or shall be, and shall remain the property of Campaign Operator and shall be deemed Confidential Information of Campaign Operator, with the exception of any Campaign Design Materials that Users upload or publish using the Services.  Butterly may accumulate and aggregate anonymous statistical and related data in order to monitor and measure the performance and functionality of its Services, to develop new products and/or Services, or to analyze or benchmark the usage and performance of the Services.

12. Warranties & Disclaimers

1. Mutual Warranties.  Each party warrants that: (i) the individual executing this Agreement is duly authorized; and (ii) it has obtained and will maintain during the term of this Agreement all necessary permits, licenses and authorizations.

2. Butterly Limited Warranty. Butterly warrants that during the Subscription Term the Services will substantially conform with Butterly’s then-current applicable specifications and Documentation.  In the event of a breach of this limited warranty during the Subscription Term, Butterly shall, at its expense, modify, replace and/or repair any defective Services.  Butterly shall have no obligations pursuant to this limited warranty in the event that the Services have been modified by Campaign Operator or a third party not authorized by Butterly, or the Services are not used pursuant to the terms and conditions of this Agreement or in compliance with the applicable Butterly specifications or Documentation.

3. Disclaimers.  THE EXPRESS WARRANTIES SET FORTH IN SECTION 14 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY BUTTERLY AND ITS SUPPLIERS.  TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, BUTTERLY AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY AND NONINFRINGEMENT.  BUTTERLY DOES NOT WARRANT (1) THAT THE HOSTING ENVIRONMENT OR SERVICES ARE ERROR FREE OR WILL MEET CAMPAIGN OPERATOR’S OR PARTICIPANTS’ SPECIFIC NEEDS, OR OBTAIN A PARTICULAR BUSINESS RESULT; (2) THAT CAMPAIGN OPERATOR, USERS OR PARTICIPANTS WILL BE ABLE TO ACCESS THE SERVICES WITHOUT INTERRUPTIONS; OR (3) THAT THE SERVICES OR THE HOSTING ENVIRONMENT ARE NOT SUSCEPTIBLE TO INTRUSION OR COMPUTER VIRUS INFECTION.

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.

14. Indemnification

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.

15. Survival

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

This Agreement as well as Butterly’s Privacy Policy shall constitute the entire agreement of the parties in relation to the use of the Services, and this Agreement shall supersede and replace any and all prior oral or written understandings or agreements between Butterly and you.

17. Severability

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.

18. Assignment

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

If you have questions or concerns about this Agreement or our Privacy Policy, you may contact us.