PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ ACCEPTED AND AGREED,” USER AGREES TO THESE TERMS AND CONDITIONS.
This Terms of Service agreement (this “Agreement”) is by and between Brightmetrics, Inc., a Delaware corporation, (“Brightmetrics”) and the individual, corporation, or other business entity executing this Agreement (“User,” with the pronoun “it”). This Agreement is effective as of the date User executes it by clicking “Accepted and Agreed” (the “Effective Date”). EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON EXECUTING THIS AGREEMENT ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO.
Brightmetrics’ third party customer (“Customer”) has invited User to use Brightmetrics’ call center data analytics computer system (the “System”) on Customer’s behalf. This Agreement governs such use.
- USE OF THE SYSTEM. User may access and use the System and Documentation (as defined below) solely to the extent and during the period authorized by Customer and Brightmetrics. User shall make no use of the System or Documentation other than as specifically authorized by Customer or Brightmetrics. In its use of the System and Documentation, User shall comply with applicable law. User recognizes and agrees that Brightmetrics may revise the features and functions of the System at any time. (“Documentation” means articles, videos, and other materials available on Brightmetrics’ website related to use of the System.)
- CUSTOMER DATA. User shall not access or use information processed or stored through the System (“Customer Data”) other than as specifically authorized by Customer and in compliance with applicable law, including without limitation applicable laws related to privacy and data security. User recognizes and agrees that Customer has authorized Brightmetrics (without limitation) to reproduce and otherwise use certain de-identified data, to erase Customer Data, and to disclose Customer Data as may be required by applicable law. Brightmetrics will have no responsibility or liability to User (without limitation) for any such activity or for any other act or omission authorized by Customer, and User hereby waives any right or remedy it may have related to such an act or omission.
- ACCEPTABLE USE. Except as specifically authorized both by Customer and this Agreement, User shall not: (1) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System of Documentation; or (2) provide System passwords or other log-in information to any third party. Further, User shall not: (3) share non-public System features or content with any third party or otherwise facilitate or permit unauthorized access to the System; (4) access the System or Documentation in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System; (5) engage in web scraping or data scraping on or related to the System, including without limitation collection or attempted collection of information through any software that simulates human activity or any bot or web crawler; or (6) violate applicable law in its use of the System. This Agreement does not require that Brightmetrics take any action against User or any third party for breach of this Article 3 or this Agreement, but Brightmetrics is free to take any such action it sees fit. User shall notify Brightmetrics immediately of any known or suspected unauthorized use of the System or breach of its security.
- IP & FEEDBACK.
- IP Rights in the System. Brightmetrics retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. User recognizes that the System and its components are protected by copyright and other laws.
- Feedback. Brightmetrics has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that User provides to Brightmetrics, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Brightmetrics’ right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting User. User hereby grants Brightmetrics a perpetual, irrevocable right and license to exploit Feedback in any and every way. Feedback will not constitute User’s trade secret. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Brightmetrics’ products or services.)
- REPRESENTATIONS & WARRANTIES.
- User’s Warranties. User represents and warrants that it: (a) has the full right and authority to enter into, execute, and perform its obligations under this Agreement; (b) has accurately identified itself and has not provided any inaccurate information about itself to Brightmetrics or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another person or entity authorized to do business pursuant to applicable law.
- Warranty Disclaimers. USER 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 NONINFRINGEMENT 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, DEFEND, OR HOLD HARMESS USER, INCLUDING WITHOUT LIMITATION AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
- LIMITATION OF LIABILITY. User recognizes and agrees that its use of the System is solely as Customer’s guest and on Customer’s behalf and that any remedies for failures of the System lie with Customer and not Brightmetrics. BRIGHTMETRICS WILL NOT BE RESPONISBLE OR LIABLE FOR ANY LOSS ARISING OUT OF OR RELATED TO USER’S USE OF THE SYSTEM.
- Limited Damages. Without limiting the generality of the preceding sentence: (a) BRIGHTMETRICS’ LIABILITY ARISING OUT OF OR REALTED THIS AGREEMENT WILL NOT EXCEED $1,000.00; 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.
- Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 6 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 USER’s REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. User acknowledges and agrees that the limitations of liability and disclaimers of warranties and damages in this Article 6 and in Section 5.2 form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Article 6, Brightmetrics’ liability will be limited to the maximum extent permissible.
- SUSPENSION & TERMINATION. Brightmetrics may suspend or terminate User’s access to the System at any time, without advanced notice, for any reason or no reason. Upon termination of this Agreement, User shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (1) Articles and Sections 4 (IP & Feedback), 5.2 (Warranty Disclaimers), and 6 (Limitation of Liability); and (2) any other provision of this Agreement that must survive to fulfill its essential purpose.
- Notices. Brightmetrics may send notices to User’s email address provided by User, and User may send notices pursuant to this Agreement to firstname.lastname@example.org.
- Interpretation. To the extent permitted by applicable law, the parties 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 of its 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.
- 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 8.3 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
- Amendment. Brightmetrics may amend this Agreement from time to time by posting an amended version at its website and sending User written notice thereof. User’s continued use of the System following the effective date of an amendment will confirm User’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.