Last Modified: 2/9/2023
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING "ACCEPT," CUSTOMER AGREES TO THESE TERMS OF SERVICE.
This Terms of Service agreement (this "Agreement") is by and between Brightmetrics, Inc., a Delaware corporation, whose principal place of business is P.O. Box 750789, Petaluma, CA 94975 ("Brightmetrics") and the corporation, LLC, partnership, sole proprietorship, or other business or government entity executing this Agreement ("Customer"). This Agreement includes any attachments described herein and any current or future Order or SoW (all as defined below in Article 1), and all such documents are incorporated by this reference. This Agreement is effective as of the date Customer or any of its employees or agents logs into the System (as defined below) or otherwise accesses or uses the System (the "Effective Date").
Brightmetrics provides a call center data analytics computer system (the "System") which consists of technology hosted on Brightmetrics' computers and accessed remotely, via the Internet, as well as software hosted on customers' computers. (Such computers of each party include, without limitation, any computers leased to it or provided by third parties as platform-as-a-service or infrastructure-as-a-service.) Brightmetrics may also provide professional services. The parties have agreed that Brightmetrics will provide the System to Customer, as well as such professional services as the parties may agree, now and pursuant to future Orders or statements of work. Customer's use of and Brightmetrics' provision of the System are governed by this Agreement, as are Customer's authorizations to allow its own customers or clients to use of the System.
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 DULY AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER'S BEHALF REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS OF SERVICE.
- DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement. Additional capitalized terms are set forth in the Data Processing Agreement ("DPA"), available at: https://www.brightmetrics.com/dpa.
1.1. "Super Administrator" means the Customer officer or employee executing this Agreement on Customer's behalf or such officer or employee as Customer designates to replace him/her as Super Administrator through the Customer Portal. (For the avoidance of doubt, the Super Administrator may also serve as an "administrative user.")
1.2. "Applicable Data Protection Law(s)" means all laws and regulations, if, where, and to the extent applicable to Brightmetrics' processing of Personal Data (defined in the DPA) as a result of the Agreement, which may include, without limitation, in the United States and its States, the European Economic Area ("EEA"), Switzerland, and the United Kingdom ("UK"), all as may be amended and replaced from time to time.
1.1. "Super Administrator" means the Customer officer or employee executing this Agreement on Customer's behalf or such officer or employee as Customer designates to replace him/her as Super Administrator through the Customer Portal. (For the avoidance of doubt, the Super Administrator may also serve as an "administrative user.")
1.3. "Cloud Components" means such elements of the System as Brightmetrics hosts on its computers.
1.4. "Customer Data" means all information processed or stored through the System by Customer or on Customer's behalf, provided however, for the avoidance of doubt: (a) Customer Data does not include Account Data or Usage Data (each defined in the DPA) that has been De-identified (as defined in Section 6.5 below); and (b) for purposes of this definition, use of the System by Guests is considered "by Customer" or "on Customer's behalf."
1.5. "Customer Portal" means the System's standard administrative interface.
1.6 "Deliverables" means any software or other deliverable created pursuant to Professional Services, as defined below.
1.7 "Documentation" means articles, videos, and other materials available on Brightmetrics' website related to use of the System.
1.8 "Guest" means any third party Customer gives access to the System. Guests include, without limitation: (a) Customer's own clients; (b) other third party companies; and (c) any individual working for either of the foregoing types of entities or contracting directly with Customer. For the avoidance of doubt, Guests do not include Customer employees.
1.9 "On-Premise Components" means such elements of the System as Customer is to run on its computers, including without limitation computers provided to Customer as infrastructure-as-a-service or otherwise provided by third parties.
1.10. "Order" means an order for access to the System that Customer's authorized representative executes on behalf of Customer (a) by creating an account and initiating a subscription at https://webapp.brightmetrics.com/UI-2/pages/Register.aspx, (b) by ordering a subscription through the procedure used by one of Brightmetrics' resellers or other channel partners, or (c) by any other means agreed to in writing by Brightmetrics' authorized representative.
1.11 "Professional Services" means such Brightmetrics services as are set forth in Article 4 below, an Order, or SoW.
1.12 "SoW" means a statement of work between Customer and Brightmetrics.
1.13 "Term" is defined in Section 13.1 below.
1.14 "User" means any individual who uses the System on Customer's behalf or through Customer's account or passwords, whether authorized or not. Users include, without limitation, the Super Administrator, any such individual the System lists as an "administrative user," Customer's other employees and agents, and individual Guests.
- CLOUD COMPONENTS & USE OF THE SYSTEM IN GENERAL. Customer shall not access or use the System other than as authorized by an outstanding Order.
2.1 Use of the System. During the Term, Customer may access and use the Cloud Components pursuant to the terms of any outstanding Order, including such features and functions as the Order requires.
2.2. Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users' use of the System.
2.3 Super Administrator. At all times, Customer shall maintain a Super Administrator and ensure that Brightmetrics has an up-to-date e-mail address for such Super Administrator, along with any other contact information Brightmetrics may request. Customer shall provide such information through the Customer Portal or through such other medium as Brightmetrics may request. Customer's obligations pursuant to this Section 2.3 include, without limitation, promptly (a) replacing a departing Super Administrator and (b) providing an e-mail address for such replacement.
2.4 System Revisions. Brightmetrics may revise the features and functions of the System at any time.
2.5 Guest Access. Subject to the provisions below of this Section 2.5, Customer may authorize Guests to access and use the System in such numbers and according to such restrictions as are set forth in the applicable Order, solely for the following purposes: to allow Guests to view, copy, and distribute data analytics information on reports and dashboards generated by the System in support of Customer's internal business purposes. Brightmetrics will have no obligation to provide any support or other professional services or any remedies to Guests.
2.6 No Promises to Guests or Users. Customer shall make no representations or warranties regarding the System or any other matter to Guests or Users or to any other third party, from or on behalf of Brightmetrics, and Customer shall not create or purport to create any obligations or liabilities of Brightmetrics.
- ON-PREMISE COMPONENTS.
3.1 License. Brightmetrics hereby grants Customer a nonexclusive license to reproduce and use the On-Premise Components, in such quantities as are set forth on the applicable Order, as necessary for Customer's internal business purposes and solely as a component of the System, provided Customer complies with the restrictions set forth below in Section 3.2 (Restrictions on Software Rights). Such internal business purposes do not include use by any parent, subsidiary, or affiliate of Customer, or any other third party, and Customer shall not permit any such use.
3.2 Restrictions on Software Rights. Copies of the On-Premise Components created or transferred pursuant to this Agreement are licensed, not sold, and Customer receives no title to or ownership of any copy or of the Software itself. Furthermore, Customer receives no rights to the Software other than those specifically granted in Section 3.1 above (License). Without limiting the generality of the foregoing, Customer shall not: (a) distribute On-Premise Components, including without limitation to Guests; (b) modify, create derivative works from, publicly display, publicly perform, or sublicense On-Premise Components; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the On-Premise Components; or (d) use the On-Premise Components in any way forbidden by Section 7.1 (Acceptable Use) below. Brightmetrics grants the license in Section 3.1 above under copyright and, solely to the extent necessary to exercise such rights, under any other applicable intellectual property of Brightmetrics.
3.3 Delivery. Brightmetrics may provide the On-Premise Components to Customer through the setup process for the System.
4.1 Provision of Professional Services. Brightmetrics shall provide the ProfessionalServices, and Customer shall provide any assistance and cooperation necessary or convenient to facilitate the Professional Services or called for in an Order or SoWs.
4.2 Included with System. Brightmetrics shall provide the following Professional Services without additional charges: (a) basic support of Customer's technical staff within Brightmetrics' normal business hours (8:30 a.m. to 5 p.m. Pacific time,Monday through Friday); and (b) access to unlimited user training via regularly scheduled live group trainings. No other Professional Services will be required unless described on the Order or an SoW, and such additional Professional Services may require additional payments from Customer.
- Acceptance & Rejection. Deliverables will be considered accepted ("Acceptance") (a) when Customer provides Brightmetrics written notice of acceptance or (b) seven days after delivery, if Customer has not first provided Brightmetrics with written notice of rejection. Customer may reject a Deliverable only if it materially deviates from its specifications and requirements listed in the applicable SoW and only via written notice setting forth the nature of such deviation. In case of such rejection, Brightmetrics shall correct the deviation and redeliver the Deliverable within seven days; provided that a SOW may specify a different correction period applicable to Deliverables under that SOW. After redelivery pursuant to the previous sentence, the parties shall again follow the acceptance procedures set forth in this Subsection 4.3(a). This Subsection 4.3(a), in conjunction with Customer's right to terminate for material breach where applicable, sets forth Customer's only remedy and Brightmetrics' only liability for failure of Deliverables.
- Incorporation of Deliverables. Upon Acceptance, each Deliverable will constitute an element of the CloudComponents or On-Premise Components, as specified in the applicable SoW, and will thereafter be subject to this Agreement's terms regarding Cloud Components or On-Premise Components, including without limitation license and indemnity terms. Brightmetrics retains ownership of all Deliverables, and Customer receives no right, title, or interest in or to Deliverables except as specifically set forth in this Agreement.
- FEES & REIMBURSEMENT.
5.1 Types of Fees. Customer shall: (a) pay Brightmetrics the fee set forth in each Order(the "Subscription Fee") for each Term, as well as additional fees for professional services, if any, identified in each Order or SoW ("Professional Service Fees"); and (b) reimburse such expenses as Brightmetrics reasonably incurs in provision of Professional Service and are agreed to in advance by Customer. Professional Services Fees for customizations of the System will be estimates only, except to the extent that the Order or SoW specifically provides to the contrary. Brightmetrics may increase its fee rates from time to time upon 60 days' written notice to Customer, effective at the beginning of the next renewal term; provided that Brightmetrics will increase fee rates no more often than once per year and for no more than 3% for each year elapsed since the Effective Date ("Contract Year"). (For example, Brightmetrics may forego an annual increase in the second and third Contract Years and may then increase its fees by 9% in the fourth Contract Year.) For clarity, Brightmetrics may increase Subscription Fees at any time to reflect Customer's addition of authorized Users exceeding the limits shown in the Order.
5.2 Payments, No Refunds. Customer shall pay Brightmetrics by the due dates set forth, as applicable, (a) in Customer's agreement with Brightmetrics' reseller, (b) on Customer's company settings page related to credit card payments, or (c)through email correspondence with Brightmetrics, to the extent that Brightmetrics has specifically acknowledged and accepted the payment terms therein. Brightmetrics may suspend Customer's access to the System if payment is not made by the due date. Except as set forth in this Agreement, Brightmetrics will not be required to refund Subscription Fees or Professional Service Fees under any circumstances.
5.3 Taxes. Amounts due under this Agreement are payable to Brightmetrics without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, "Sales Tax"). Except as forbidden by applicable law, Brightmetrics may require that Customer submit applicable Sales Taxes to Brightmetrics. However, the preceding sentence does not apply to the extent that Customer is tax exempt, provided it gives Brightmetrics a valid tax exemption certificate within 30 days of the Effective Date. Brightmetrics' failure to include any applicable tax in an invoice will not waive or dismiss the parties' rights or obligations pursuant to this Section 5.3. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer shall separately pay Brightmetrics the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section 5.3 does not govern taxes based on Brightmetrics' net income.
- CUSTOMER DATA & CUSTOMER PERSONAL DATA.
6.1 Use of Customer Data. Brightmetrics shall not: (a) access, process, or otherwise use Customer Data other than as necessary to facilitate the System, to provide Customer the Professional Services, or otherwise to comply with Customer's Instructions (defined in the DPA); or (b) give Customer Data access to any third party, except Brightmetrics' subcontractors that have a need for such access to facilitate the System or provide Customer the Professional Services and are subject to a reasonable written agreement governing the use and security of Customer Data. Further, Brightmetrics: (c) shall exercise reasonable efforts to prevent unauthorized disclosure or exposure of Customer Data.
6.2 Special including Statutory Terms. The DPA (available at https://www.brightmetrics.com/dpa) and its Schedules (e.g., processing subject to Applicable Data Protection Laws) are hereby incorporated into this Agreement. Each such additional Schedule or other document applies solely to the specific Personal Data addressed therein and not to any other Customer Data or other data or any of the parties' other rights or duties pursuant to this Agreement.
6.3 Additional Fees. Customer recognizes and agrees that Brightmetrics may charge additional fees, to be agreed upon in advance with Customer, (without limitation) (a) for activities (if any) required by applicable law and (b) for activities Customer requests to help it comply with applicable law.
6.5 De-Identified Data. Notwithstanding the provisions above of this Article 6, Brightmetrics may use, reproduce, sell, publicize, or otherwise exploit De-Identified Data (as defined below) in any way, in its sole discretion, including without limitation as aggregated with data from other customers, subject to applicable law. For clarity, this Section 6.5 is included in Customer's Instructions to Brightmetrics, as described in Section II of the DPA. ("De-Identified Data" refers to data, including Customer Data, with the following removed: information that identifies or could reasonably be used to identify an individual natural person, a household, a Guest, or Customer.)
6.6 Erasure. Brightmetrics may permanently erase Customer Data if Customer's account is suspended for 60 days or more, without limiting Brightmetrics' other rights or remedies, and Customer is on notice that Brightmetrics will generally permanently erase Customer Data within 60 days following expiration or termination of the Agreement, except where retention may be required by law. For the avoidance of doubt, should Customer desire access to or copies of Customer Data, Customer must, prior to termination or expiration of the Agreement, obtain it from the System or, if Customer cannot obtain it on its own, request it from Brightmetrics. Customer recognizes and agrees that Brightmetrics may charge a fee (in its sole discretion) for such assistance.
6.7 Required Disclosure. Notwithstanding the provisions above of this Article 6, Brightmetrics may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Brightmetrics shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer's expense.
6.8 Data Accuracy. Brightmetrics shall have no responsibility or liability for the accuracy of data uploaded to the System or otherwise provided to Brightmetrics by Customer, including without limitation Customer Data and any other data uploaded by Users (on Customer's behalf or on a Guest's) or by Customer's telephone service providers.
- CUSTOMER'S RESPONSIBILITIES & RESTRICTIONS.
7.1 Acceptable Use. Customer 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, except Guests as specifically authorized by this Agreement; (b) provide System passwords or other log-in information to any third party, except Guests as specifically authorized by this Agreement; (c) share non-public System features or content with any third party; (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; or (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. If it suspects any breach of the requirements of this Section 7.1, including without limitation by Users, Brightmetrics may suspend Customer's access to the System without advanced notice, in addition to such other remedies as Brightmetrics may have. This Agreement does not require that Brightmetrics take any action against Customer or any User or other third party for breach of this Section 7.1 or this Agreement, but Brightmetrics is free to take any such action it sees fit.
7.2 Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Brightmetrics immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.
7.3 Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation Applicable Data Protection Laws.
7.4 Guests & Users. Customer is responsible and liable for: (a) Users and Guests' use of the System, including without limitation unauthorized User conduct and any User conduct that would violate this Agreement if committed by Customer; and (b) any use of the System through Customer's account, whether authorized or unauthorized. Customer shall be solely responsible for providing access to the System to its authorized Users. Each User will be required to agree to the User Terms set forth at https://www.brightmetrics.com/dpa-user-terms.
- IP & FEEDBACK.
8.1 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. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components, except to the limited extent that this Agreement specifically sets forth Customer license rights to On-Premise Components or Documentation. Customer recognizes that the System and its components are protected by copyright and other laws.
8.2 Feedback. Brightmetrics has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer, Guests, or other Users provide 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 Customer or the Guest or other User in question. Customer hereby grants Brightmetrics a perpetual, irrevocable right and license to exploit Feedback in any and every way. Feedback will not constitute Customer's trade secret. ("Feedback" refers to any suggestion or idea for improving or otherwise modifying any of Brightmetrics' products or services.)
- CONFIDENTIAL INFORMATION. "Confidential Information" refers to the following items that one party to this Agreement ("Disclosing Party") discloses to the other party ("Receiving Party"): (1) any document Disclosing Party marks "confidential" or otherwise identified in writing as Confidential Information, including in Section III.e of the DPA; (2) any information Disclosing Party orally designates as "confidential" at the time of disclosure, provided Disclosing Party confirms such designation in writing within five business days; and (3) any other nonpublic, sensitive information Receiving Party should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (A) is in Receiving Party's possession at the time of disclosure; (B) is independently developed by Receiving Party without use of or reference to Confidential Information; (C) becomes known publicly, before or after disclosure, other than as a result of Receiving Party's improper action or inaction; or (D) is approved for release in writing by Disclosing Party. In addition, Confidential Information does not include the existence of this Agreement and the relationship between Receiving Party and Disclosing Party.
9.1 Nondisclosure. Receiving Party shall not use Confidential Information for any purpose other than providing and receiving and using the System and the Professional Services, as applicable (the "Purpose"). Receiving Party: (a) shall not disclose Confidential Information to any employee or contractor of Receiving Party unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Receiving Party with terms no less restrictive than those of this Article 9; and (b) shall not disclose Confidential Information to any other third party without Disclosing Party's prior written consent. Without limiting the generality of the foregoing, Receiving Party shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Receiving Party shall promptly notify Disclosing Party of any misuse or misappropriation of Confidential Information that comes to Receiving Party's attention. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Receiving Party shall give Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at Disclosing Party's expense.
9.2 Injunction. Receiving Party agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article 9; (b) it would be difficult to determine the damages resulting from its breach of this Article 9, and such breach would cause irreparable harm to Disclosing Party; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that Disclosing Party prove actual damage or post a bond or other security. Receiving Party waives any opposition to such injunctive relief or any right to such proof, bond, or other security. (This Section 9.2 does not limit either party's right to injunctive relief for breaches not listed.)
9.3 Termination & Return. Upon termination of this Agreement, Receiving Party shall return all copies of Confidential Information to Disclosing Party or certify, in writing, the destruction thereof.
9.4 Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Disclosing Party will retain all right, title, and interest in and to all Confidential Information.
9.5 Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b)(the "DTSA"), each party is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
- IMMUNITY. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
- USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and(B) does not disclose the trade secret, except pursuant to court order.
- REPRESENTATIONS & WARRANTIES.
10.1 Brightmetrics' Warranties.
- IP Rights in the System. Subject to the next sentence, Brightmetrics represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the System set forth in this Agreement without the further consent of any third party. Brightmetrics' representations and warranties in the preceding sentence do not apply to the extent that any infringement of a third party's rights arises out of any of the conditions listed in Subsections 11.1(a) through 11.1(d) below. In case of a breach of the warranty in this Subsection 10.1(a), Brightmetrics, at its own expense, shall promptly take the following actions: (i) secure for Customer the right to continue using the System; (ii) replace or modify the System to make it non-infringing; or if such remedies are not commercially practical in Brightmetrics' reasonable opinion (iii) terminate the infringing features of the System, including licenses to affected On-Premise Components, and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. If Brightmetrics exercises its rights pursuant to Subsection 10.1(a)(iii) above, Customer shall cease all use of affected On-Premise Components and Documentation and erase any copies thereof. In conjunction with Customer's right to terminate for breach where applicable, the preceding sentence states Brightmetrics' sole obligation and liability, and Customer's sole remedy, for breach of the warranty in this Subsection 10.1(a) and for potential or actual intellectual property infringement by the System.
- Professional Services. Brightmetrics represents and warrants (a) that any Deliverables provided under a SoW will conform to their specifications set forth in the applicable SoW for a period of 90 days following Acceptance (as defined in Subsection 4.3(a) above) and that all Professional Services will be performed in a professional and workmanlike manner.
10.2 Customer's Warranties.
- Re Customer Itself. Customer represents and warrants that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (ii) the person executing this Agreement on Customer's behalf is duly authorized to do so; (iii) it has accurately identified itself and has not provided any inaccurate information about itself to Brightmetrics or through the System; and (iv) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
- Re Users and Guests. Customer represents and warrants that: (i) Customer shall accurately identify each User and Guest and shall not provide any inaccurate information about a User or Guest to or through the System; (ii) each Guest will be a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law; and (iii) each User will be an individual 18 years old or older.
10.3 Warranty Disclaimers. Except to the extent set forth in Section 10.1 above, CUSTOMER ACCEPTS THE SYSTEM "AS IS" AND AS AVAILABLE. And except as set forth above in this Article 10, 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, DEFEND, OR HOLD HARMLESS CUSTOMER, INCLUDING WITHOUT LIMITATION AGAINST CLAIMS RELATED TO PRODUCT LIABILITY OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, EXCEPT IN THE LATTER CASE AS SET FORTH IN SECTION 11.1 (Indemnity from Brightmetrics) BELOW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) BRIGHTMETRICS DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR OR THAT APPLICATION PROGRAMMING INTERFACES (APIs) ALLOWING CUSTOMERS TO ACCESS AND TRANSFER REPORTS WILL BE AVAILABLE AT ALL TIMES; AND (b) BRIGHTMETRICS DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
11.1 Indemnity From Brightmetrics. Brightmetrics shall defend and indemnify Customer and Customer's Associates (as defined below in Section 11.3) against any "Indemnified Claim," meaning any third party claim, suit, or proceeding arising out of or alleging direct infringement of any patent, copyright, trade secret, or other intellectual property right as a result of Customer's authorized use of the System. Brightmetrics' obligations set forth in this Section 11.1 do not apply to the extent that an Indemnified Claim arises out of: (a) Customer's breach of this Agreement, including without limitation its failure to cease use of the Software after Brightmetrics' direction pursuant to Section 10.1(a) (Re IP Rights in the System); (b) revisions to the On-Premise Components or other System components made without Brightmetrics' written consent; (c) any Deliverable, if the SoW or a disclosure provided at or before delivery states that such Deliverable incorporates third party software or other assets; or (d) use of the System in combination with any hardware or software not provided by Brightmetrics, including without limitation any Customer infrastructure. In case of an Indemnified Claim, Brightmetrics may exercise the remedies in Subsections 10.1(a)(i) through 10.1(a)(iii) above, including without limitation its right therein to terminate licenses and require return of the Software.
11.2 Indemnity From Customer. Customer shall indemnify and defend Brightmetrics and Brightmetrics' Associates (as defined below in Section 11.3) against any "Indemnified Claim," meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or Guests or by Customer's or Guests' other employees; (b) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer's account, including without limitation by Customer Data; and (c) infringement claims arising out of or related to the conditions listed in Subsections 11.1(a) through 11.1(d) above. Indemnified Claims pursuant to the preceding sentence also include claims related to the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, or employees. Indemnified Claims listed above in this Section 11.2 include, without limitation, claims arising out of or related to Brightmetrics' negligence, but they exclude any claim that would constitute an Indemnified Claims pursuant to Section 11.1 above.
11.3 Litigation & Additional Terms. The obligations of the indemnifying party ("Indemnitor") pursuant to Section 11.1 or 11.2 above: (a) include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor's expense and payment of judgments; and (b) will be excused to the extent that the other contracting party's ("Indemnified Party's") or any of such Indemnified Party's Associates' failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. If Indemnitor fails to assume the defense on time to avoid prejudicing the defense, Indemnified Party may defend the Indemnified Claim, without loss of rights pursuant to this Article 11. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (A party's "Associates" are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
- LIMITATION OF LIABILITY.
12.1 Dollar Cap. BRIGHTMETRICS' LIABILITY WILL NOT EXCEED THE FEES PAID PURSUANT TO THE APPLICABLE ORDER OR SOW DURING THE YEAR PRECEDING THE INJURY IN QUESTION, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO SUCH ORDER OR SOW; PROVIDED THAT IF CUSTOMER IS USING THE SYSTEM WITHOUT CHARGE FOR A TRIAL OR OTHER FREE PERIOD, BRIGHTMETRICS' LIABILITY WILL NOT EXCEED $500.00. THE LIMITS OF LIABILITY IN THE PRECEDING SENTENCE ARE CUMULATIVE AND NOT PER-INCIDENT.
12.2 Excluded Damages. Except regarding breaches of Article 9 (Confidential Information), 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.
12.3 Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 12 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 CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Customer acknowledges and agrees that Brightmetrics has based its pricing on and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Article 12 and in Section 10.3 and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Article 12, Brightmetrics' liability will be limited to the maximum extent permissible.
- TERM & TERMINATION.
13.1 Term. The initial term of this Agreement (the "Initial Term") will commence on the Effective Date and continue for the period set forth in the Order. Thereafter, the Term will renew for successive periods equal to the Initial Term or such other period set forth in the Order (each, a "Renewal Term") unless either party refuses such renewal by written notice 30 or more days before the renewal date. The "Term" of the Agreement is equal to the Initial Term and any Renewal Terms. The foregoing notwithstanding, if Customer purchases a subscription to the System from one of Brightmetrics' channel partners, the Term set forth in Customer's agreement with such channel partner shall control if it conflicts with the Term described above.
13.2 Termination for Cause. Either party may terminate this Agreement for the other's material breach by written notice specifying in detail the nature of the breach effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. Without limiting Brightmetrics' other rights and remedies, if Brightmetrics reasonably concludes a User or Guest has conducted him/her/itself in a way that is not consistent with the requirements of this Agreement or in a way that subjects Brightmetrics to potential liability, Brightmetrics may, at any time and without advanced notice:(a) suspend or terminate such User's access to the System; or (b) suspend or terminate all such Guest's Users' access to the System and refuse any future Users for such Guest.
13.3 Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation and On-Premise Components in its possession or control. Upon termination for cause by Brightmetrics, Customer shall pay all fees due for the remainder of any terminated Renewal Term and Initial Term, without limiting Brightmetrics' other rights and remedies. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 3.2 (Restrictions on Software Rights) 8 (IP & Feedback), 9 (Confidential Information), 10.2 (Warranty Disclaimers), 11 (Indemnification), and 12 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
14.1 Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other's behalf.
14.2 Notices. Customer may send notices pursuant to this Agreement only to email@example.com or to such replacement address as Brightmetrics may specifically designate in writing as the address for this Agreement's notices. Brightmetrics may send notices pursuant to this Agreement to the Super Administrator, including without limitation to his or her e-mail address listed in the Customer Portal. All notices described above will be considered received 1 business day after they are sent. Customer recognizes and agrees that Brightmetrics may have no information related to changes in the Super Administrator or his or her contact information, other than information Customer provides through the Customer Portal. Customer assumes all risks related to any failure to update such contact information, including without limitation the risk that notices will be effective if properly sent regardless of whether they are actually received.
14.3 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by epidemics, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party's reasonable control.
14.4 Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Brightmetrics' express written consent. Except to the extent forbidden in this Section 14.4, this Agreement will be binding upon and inure to the benefit of the parties' respective successors and assigns.
14.5 Severability. 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.
14.6 No Waiver. 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.
14.7 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 14.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
14.8 Conflicts. In case of a conflict among the attachments to this Agreement and this main body, the following order of precedence will govern, with lower numbers governing over higher ones: (1) this main body of this Agreement; (2) DPA Schedules 3 and/or 4 (if and where applicable); (3) DPA; (4) any SoW, with more recent Statements of Work taking precedence over later ones; and (5) any Brightmetrics policy posted online. Notwithstanding the preceding sentence, the DPA or Schedule 3 or 4 to the DPA takes precedence over inconsistent terms in this main body of this Agreement to the extent that applicable law specifically so requires. No SoW or other attachment incorporated into this Agreement after execution of this main body will be construed to amend this main body or any earlier attachment unless it specifically states its intent to do so and cites the section or sections amended.
14.9 Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
14.10 Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Brightmetrics or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, the Crimea Region of Ukraine, Cuba, Iran, North Korea, and Syria).
14.11 Entire 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.
14.12 Amendment. Brightmetrics may amend this Agreement from time to time by posting an amended version at its website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the "Proposed Amendment Date") unless Customer first gives Brightmetrics written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer's next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 13 (Term & Termination)). Customer's continued use of the System following the effective date of an amendment will confirm Customer's consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.