Last Modified: 1/23/2023
PLEASE READ THESE USER TERMS CAREFULLY. BY CLICKING “ ACCEPTED AND AGREED,” YOU AGREE TO THESE TERMS AND CONDITIONS.
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 ACCURATELY IDENTIFIED YOURSELF AND HAVE NOT PROVIDED ANY INACCURATE INFORMATION ABOUT YOURSELF TO BRIGHTMETRICS, INCLUDING WITHOUT LIMITATION THROUGH THE SYSTEM.
- USE OF THE SYSTEM. You may access and use the System and Documentation (as defined below) solely to the extent and during the period authorized by Customer and Brightmetrics. You shall make no use of the System or Documentation other than as specifically authorized by Customer or Brightmetrics. In your use of the System and Documentation, you shall comply with applicable law. You 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. You 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. You recognize and agree that Customer has authorized Brightmetrics (without limitation) to reproduce and otherwise use certain de-identified data included within Customer Data, to erase Customer Data, to disclose Customer Data as may be required by applicable law, and otherwise to manage Customer Data. You recognize and agree that: (a) this Agreement does not impose on Brightmetrics any obligations to you related to Customer Data; and (b) Brightmetrics will have no responsibility or liability to you for act or omission related to Customer Data or for any act or omission authorized by Customer, and you hereby waive any right or remedy you may have related to such an act or omission. (The preceding sentence does not waive any right you may have pursuant to applicable privacy and security law as the subject of private information.)
- ACCEPTABLE USE. Except as specifically authorized both by Customer and this Agreement, you shall not: (A) 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 (B) provide System passwords or other log-in information to any third party. Further, you shall not: (C) share non-public System features or content with any third party or otherwise facilitate or permit unauthorized access to the System; (D) 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; (E) 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 your use of the System. This Agreement does not require that Brightmetrics take any action against you 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. You 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. You 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 (defined below) you provide, 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 you. You hereby grants Brightmetrics a perpetual, irrevocable right and license to exploit Feedback in any and every way. Feedback will not constitute your trade secret or that of your employer or of any other person or entity associated with you. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Brightmetrics’ products or services.)
- 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.
- “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 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 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.