Last Modified: 1/23/2023
PLEASE READ THESE USER TERMS CAREFULLY. BY CLICKING "ACCEPT," YOU AGREE TO THESE TERMS.
This User Terms agreement (this "Agreement") is by and between you and Brightmetrics, Inc., a Delaware corporation, ("Brightmetrics"). Brightmetrics’ third party customer ("Customer") has invited you to use Brightmetrics’ call center data analytics computer system (the "System") on Customer’s behalf. (You may or may not be Customer’s employee.) This Agreement governs such use.
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS. FURTHER, YOU REPRESENT AND WARRANT THAT: (I) YOU ARE AN INDIVIDUAL 18 YEARS OR OLDER; (II) YOU HAVE THE FULL RIGHT AND AUTHORITY TO ENTER INTO, EXECUTE, AND PERFORM YOUR OBLIGATIONS UNDER THIS AGREEMENT; AND (III) YOU HAVE NOT PROVIDED ANY INACCURATE INFORMATION ABOUT YOURSELF TO BRIGHTMETRICS, INCLUDING WITHOUT LIMITATION THROUGH THE SYSTEM.
7.1. Notices. Brightmetrics may send notices related to this Agreement to the e-mail address you have provided, and You may send such notices to firstname.lastname@example.org
7.2. Interpretation. To the extent permitted by applicable law, you and Brightmetrics hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. If a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect. Neither party will be deemed to have waived any rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications. The parties are independent contractors and shall so represent themselves in all regards.
7.3. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Sonoma County, California. This Section 7.3 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
7.4. Amendment. Brightmetrics may amend this Agreement from time to time by posting an amended version at its website and sending you written notice thereof. Your continued use of the System 5 business days after the effective date of an amendment confirms your consent thereto. This Agreement may not be amended in any other way except through a written agreement by each party.
5. DISCLAIMERS AND LIMITS OF LIABILITY. You recognizes and agrees that your use of the System is solely as Customer’s invited user and on Customer’s behalf and that your remedies for failures of the System, if any, lie with Customer and not Brightmetrics.
5.1. "As Is"; No Warranty. YOU ACCEPTS THE SYSTEM "AS IS" AND AS AVAILABLE. BRIGHTMETRICS PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BRIGHTMETRICS HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU OR TO HOLD YOU HARMLESS, INCLUDING WITHOUT LIMITATION AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, BRIGHTMETRICS WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS ARISING OUT OF OR RELATED TO YOUR USE OF THE SYSTEM.
5.2. LIMITS OF LIABILITY. Without limiting the generality of Section 5.1 above: (a) BRIGHTMETRICS’ LIABILITY ARISING OUT OF OR RELATED THIS AGREEMENT WILL NOT EXCEED $500.00; AND (b) IN NO EVENT WILL BRIGHTMETRICS BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
5.3. Liability Clarifications and Restrictions. You acknowledges and agree that: (a) the limitations of liability, disclaimers of warranties, and other provisions of this Article 5 form an essential basis of the bargain between you and Brightmetrics; and (b) without such provisions, Brightmetrics would not give you access to the System. If applicable law limits the application of the provisions of this Article 5, Brightmetrics’ liability will be limited to the maximum extent permissible. THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES, AND OTHER PROVISIONS OF THIS ARTICLE 5 APPLY TO THE BENEFIT OF BRIGHTMETRICS’ OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, AGENTS, SPONSORS, AND OTHER THIRD PARTY CONTRACTORS AND REPRESENTATIVES, AS WELL AS: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF BRIGHTMETRICS IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
6. SUSPENSION & TERMINATION. Brightmetrics may suspend or terminate your access to the System at any time, without advanced notice, for any reason or no reason. Upon termination of this Agreement, you shall cease all use of the System and delete, destroy, or return all copies of the Documentation in your possession or control. The following provisions will survive termination or expiration of this Agreement: (a) Articles 4 (IP & Feedback) and 5 (Disclaimers and Limits of Liability); and (b) any other provision of this Agreement that must survive to fulfill its essential purpose.