BRILLIUM SOFTWARE AS A SERVICE
TERMS OF SERVICE AGREEMENT
In order for Customer to use the Software, Customer must be of legal age (as applicable in Customer’s location) and agree to be bound by the terms set forth in this Agreement by either clicking to “accept/agree” upon placing an order (“Order”) on the Brillium Website or by placing an Order through a Brillium Sales team member, or by actually using the Software. Customer understands and agrees that Brillium will treat Customer’s use of the Software as acceptance of the terms set forth in this Agreement.
WHEREAS, Brillium is a provider of the Software that offers customers the ability to author, deliver and analyze Assessments; and
WHEREAS, Customer desires to obtain, and Brillium desires to grant, nonexclusive use of certain Software provided by Brillium in exchange for certain fees pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration for the mutual promises and covenants contained herein, Brillium and Customer hereby agree as follows:
1. GRANT OF LICENSE
1.1. License. Subject to the terms and conditions set forth in this Agreement, Brillium grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited, worldwide license (the “License”) to access and use the Software. All such Software is owned exclusively or licensed by Brillium, and the grant of this License does not affect Brillium’s ownership or license rights in such Software, including all maintenance, modifications and enhancements, if any. In connection with this License, Customer may:
(a) use the Authoring and Reporting features of the Software for non-commercial “internal use” only. “Internal use” shall mean that Customer may allow its Representatives, Affiliates and Agents to use the Authoring and Reporting features of the Software for the benefit of Customer and Customer’s Affiliates provided that Customer’s Representatives, Affiliates and Agents have the same obligations as Customer under this Agreement. The term and termination of the License shall coincide with the provisions of Section 1.4, Section 3.5 and Section 3.6 of this Agreement;
(b) provide access to Assessments created through the use of the Software to any Respondents, provided such access does not violate the terms of this Agreement or any applicable act(s) of law. For the purpose of clarity, nothing stated in this Section 1.1(b) shall change Customer’s indemnification obligations in this Agreement; and
(c) provide access to Respondent Reports, whether electronic or printed, to any Respondents.
1.2. Resale. Customer may not resell the Software under its own name or any other name or include the Software within its own product or service offerings without express written authorization from Brillium. Furthermore, Customer’s resale of the Software (if permitted) shall be pursuant to such payment terms as mutually agreed upon in writing between Customer and Brillium. The term and termination of any such license to resell the Software shall coincide with the Term and Termination provisions of this Agreement unless otherwise agreed to by Brillium in writing.
1.3. Restrictions. Customer shall keep intact all, and may not alter any, copyright and other proprietary notices contained in the Software unless explicitly granted permission by Brillium in writing. All Software is protected to the maximum extent permitted by copyright laws and international treaty provisions. Any reproduction or redistribution of the Software is expressly prohibited and may result in severe civil and/or criminal penalties. Any Person violating the foregoing, or who otherwise misappropriates any intellectual property or proprietary rights related to the Software, may be prosecuted to the maximum extent possible. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCING THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. CUSTOMER MAY NOT DECOMPILE, DISASSEMBLE OR REVERSE ENGINEER THE SOFTWARE OR OTHERWISE ATTEMPT TO DISCOVER ANY TRADE SECRET CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER, AND CUSTOMER SHALL NOT DIRECT, PERMIT OR ALLOW OR CAUSE A THIRD PARTY TO DO THE SAME.
1.4. Term. This Agreement shall commence on the Effective Date and shall continue in force for a fixed term of three (3) months or one (1) year, depending on the subscription period elected by Customer in the Order (the “Initial Term”), unless terminated earlier as provided herein. This Agreement shall automatically renew for additional periods of three (3) months or one (1) year, depending on the subscription period elected by Customer in the Order (each, a “Renewal Term”) at the end of the Initial Term or any Renewal Term, unless the Agreement is terminated as provided herein.
2. BRILLIUM SOFTWARE AND FEES
Pricing information for the Software subscriptions may be obtained at https://www.brillium.com/pricing. Due to Brillium’s continuous effort to enhance the Software, maintain compliance with industry standards, practices and applicable law, the nature of the Software, and the nature of this Agreement, the features of the Software are subject to change at any time without notice to Customer. Nothing herein shall be construed to create any warranties not expressly stated in this Agreement. For a current list of features and minimum hardware and software requirements, visit the Brillium Website.
3. BILLING AND PAYMENT
3.1. Billing. Brillium’s fees for the Software shall be paid in U.S. dollars. The Software is made available to Customer on an annual or quarterly subscription basis (“Payment Term”). All fees shall be billed in advance in accordance with Customer’s chosen subscription. Customer hereby authorizes Brillium to issue a bill in advance for all applicable annual or quarterly fees and expenses incurred by Customer or on Customer’s behalf in connection with Customer’s use of the Software. All fees and expenses are due and payable within thirty (30) days after the date of the invoice. In the event Customer fails or refuses to pay an invoice within thirty (30) days of the invoice date, Brillium will charge interest at the rate of one percent (1%) per month on the remaining amount due. In the event Customer fails or refuses to pay any invoice within forty-five (45) days of the invoice date, Brillium may terminate this Agreement and Customer’s access and right to use the Software immediately. Customer shall pay any and all fees, expenses, charges, duties, assessments and any and all federal, state and local sales, use, excise and other taxes applicable arising out of Customer’s use of the Software.
3.2. Payments. If Customer does not provide a credit card or other payment information to Brillium before the expiration of any free trial period, then Brillium shall have no obligation to maintain Customer’s trial account and data and may permanently delete all such account, data and any related information in accordance with Brillium’s normal course of business. All subscriptions for the Software will renew automatically based on Customer’s subscription plan renewal cycle. Brillium shall provide an interface through the Software or other reasonable means for Customer to change credit card information (e.g., upon card renewal). Customer will receive a receipt upon each payment received by Brillium. Customer may also obtain a receipt from within the Software in order to track the status of Customer’s active subscription(s).
3.3. Billing Contact. Brillium shall direct all invoices and payment matters to Customer using the contact information provided by Customer upon placing an Order (the “Customer Billing Contact”). Customer may change its Customer Billing Contact by providing Brillium with advanced written notice, containing the name and contact information of the new Customer Billing Contact and effective date of the change. If made available to Customer, such notice can also be made through the Software, by email, through a website or Customer Portal, or other electronic means. It is Customer’s sole responsibility to inform Brillium of any changes to Customer’s billing information so that Customer’s use of the Software is not interrupted.
3.4. Modifying a Software Subscription. Customer’s subscription may be modified at any time. When choosing to upgrade the Software during Customer’s elected subscription period, any incremental cost will be prorated over the remaining term of the subscription period and charged to Customer’s account. Subsequently, Customer will be charged the adjusted rate on the next billing cycle. If Customer is on a quarterly billing cycle, a prorated charge or credit may not be shown in the current quarter, but the new billing rate will be reflected on Customer’s next bill in accordance with Customer’s chosen subscription plan(s) cycle. Regardless of Customer’s billing cycle, there are no refunds or credits for plan downgrades or refunds for unused time if Customer cancels a subscription to the Software before the end of Customer’s elected subscription period. No exceptions will be made in order to provide equal customer treatment and maintain low, predictable administrative costs for the benefit of all Brillium customers. Downgrading a subscription plan may cause the loss of Customer Data, features or capacity. Brillium does not accept any liability for such loss. Brillium reserves the right to contact Customer about special pricing if Customer’s account displays an exceptional or unreasonably high number of Respondents, activity, Reporting, access or request activity or other excessive stress on the Software.
3.5. Cancellation by Customer. Customer is responsible for cancellation of the Software, which shall result in an automatic termination of this Agreement at the end of the then-current subscription period. Customer may cancel the Software subscription at any time, through the use of a button, link or other method made available through the Software, or by contacting Brillium and providing written notification of such cancellation, provided receipt of such notification is confirmed by Brillium. Upon such termination, Brillium shall remove Customer’s access to the Software at the end of Customer’s then-current subscription period. Brillium reserves the right to delete Customer Data in accordance with applicable law or Brillium’s normal course of business.
3.6. Cancellation by Brillium. Brillium shall have the right, at its sole discretion, to suspend or cancel Customer’s subscription and access to the Software if any of the following events occur: (a) Customer fails to pay the fees on time; (b) Customer’s credit card payment information is entered in error or does not successfully complete processing and Customer does not update payment information upon Brillium’s request; (c) the insolvency of, or the making by, Customer of an assignment for the benefit of creditors; (d) the filing by or against Customer of, or the entry of an order for relief against Customer in, any voluntary or good faith involuntary proceeding under any bankruptcy, insolvency, reorganization or receivership law, including, but not limited to, the Bankruptcy Code, or an admission seeking relief as therein allowed, which filing or order shall not have been vacated within sixty (60) calendar days from the entry thereof; (e) the appointment of a receiver for all or a substantial portion of Customer’s property and such appointment shall not be discharged or vacated within sixty (60) calendar days of the date thereof; or (f) the assumption of custody, attachment or sequestration by a court of competent jurisdiction of all or a significant portion of Customer’s property. No assignee for the benefit of creditors, receiver, liquidator, trustee in bankruptcy, sheriff or any other officer of the court or official charged with taking over custody of the assets or business of Customer shall have any right to continue performance of this Agreement, and this Agreement may not be assigned by operation of law. Furthermore, Brillium reserves the right to: (i) modify or discontinue, temporarily or permanently, the Software (or any part thereof) and (ii) refuse any/all current and future use of the Software, suspend or cancel Customer’s account or any part thereof (or Customer’s use of the Software), and remove and discard any of the Customer Data within the Software if Brillium believes that Customer has violated this Agreement. Brillium will use reasonable efforts to contact Customer directly via email to warn Customer prior to suspension or termination of Customer’s account. Any suspected fraudulent, abusive or illegal activity may be grounds for immediate termination of Customer’s use of the Software and may be referred to law enforcement authorities. Brillium shall not be liable to Customer or any third party for any modification, suspension or discontinuation of the Software. Additionally, Brillium may terminate Customer’s use of any free or beta version of the Software at any time and for any reason.
3.7. Excuse of Performance. Notwithstanding anything herein to the contrary, Brillium shall not be in breach of any of its obligations hereunder in the event Customer is in breach of its obligations hereunder, including, but not limited to, Customer’s payment obligations.
4. SUPPORT SERVICES
4.1. Support. Brillium will provide technical support to Customer (“Support Service”) from 9:00 AM to 6:00 PM as observed in Jacksonville, Florida, United States of America (“U.S.”), Monday through Friday (“Support Hours”). Support Hours are subject to change at any time at Brillium’s sole discretion. Support Service will include Customer communication and research time performed by Brillium’s Support Service staff
4.2. Support Procedure. Brillium shall provide Support Service to the named Customer contact (“Customer Support Contact”) provided to Brillium as indicated on the Order. Customer may request any number of Customer Support Contacts for the current fee, as determined by Brillium. Customer may change any of its Customer Support Contacts through the Software or by emailing support "@" brillium.com and providing verification of the request in writing.
4.3. Respondent Support. Brillium shall not be responsible for providing Support Service directly to Respondents. Customer will be solely responsible for supporting all Respondents, and Customer agrees to indemnify and hold Brillium harmless against any and all claims brought against Brillium from a Respondent related to support.
4.4. Report of Malfunction. With respect to a report of any malfunction, the Customer Support Contact shall describe in reasonable detail the circumstances under which the malfunction occurred or is occurring. The Customer Support Contact shall report malfunctions either by submitting a support request at https://support.brillium.com, by email to firstname.lastname@example.org, as directed by the Software, or through a website or Customer Portal. If a Brillium staff member is not immediately available during the Support Hours, one will be assigned and a response back to the Customer Support Contact will be initiated within twenty-four (24) hours of Customer Support Contact’s original report. Brillium staff members shall: (a) classify the malfunction as a Severity Level 1, 2, 3 or 4 malfunction (as set forth below) and (b) seek to resolve the malfunction. If the Brillium staff member handling a certain report is unable to provide adequate assistance to the Customer Support Contact, then Brillium will supply one or more alternative support staff member(s) who are able to respond in a reasonable manner.
4.5. Malfunction Classifications. The definitions of the malfunction classifications are as follows:
(a) Severity Level 1 (Urgent): A problem that either renders Customer’s use of the Software inoperative or causes an unrecoverable loss or corruption of Customer’s Data.
(b) Severity Level 2 (High): A problem that causes a significant and ongoing interruption and materially interferes with Customer’s use of the Software.
(c) Severity Level 3 (Medium): A problem that causes Customer’s use of the Software not to function in accordance with applicable specifications but causes only a minor impact on Customer’s use of the Software and for which a circumvention is available.
(d) Severity Level 4 (Low): Any general questions and wishes pertaining to the Software and all malfunctions that are not included in the other malfunction classifications.
4.6. Brillium’s Level of Effort. Brillium will work continuously during Support Hours until it has achieved a correction or workaround for any Severity Level 1 or Severity Level 2 malfunction. For a Severity Level 3 or Severity Level 4 malfunction, Brillium will provide a correction, workaround or response as promptly as reasonably achievable. All support matters shall be considered resolved if: (a) the malfunction is corrected or a workaround is provided to Customer; (b) the source of the malfunction lies with third-party software or services outside of Brillium’s control; or (c) Customer does not respond to a query or request from Brillium for seven (7) consecutive days.
4.7. Exceptions for Free or Beta Versions. Notwithstanding anything herein to the contrary, Brillium’s support obligations shall not apply to any free or beta versions of the Software. Customer specifically acknowledges that Customer may not experience the same level of Software support, features, function or performance with free or beta versions of the Software.
4.8. Updates. Brillium shall provide Customer with updates and improvements to the Software if and when Brillium releases them.
4.9. No Warranty. Nothing in this Section 4.9 shall be construed to create any warranties not expressly stated in Section 6 (Limited Warranties; Disclaimer; Limitation of Damages).
5. SERVICE LEVEL WARRANTY
5.1. Service Level. The Software shall be available for normal use 99.5% of the time each calendar month (inclusive of scheduled maintenance periods as set forth herein), with the exception of exclusions listed below (“Service Level”). Scheduled system downtime for maintenance shall be for regular maintenance and upgrades (“Scheduled Maintenance”) and shall take place on dates and times, as Brillium deems necessary, to meet its Service Level. Brillium reserves the right to change the Scheduled Maintenance periods and schedule(s) at any time.
5.2. Exclusions. The following exclusions shall apply to the Service Level: (a) Emergency Maintenance – Emergency maintenance shall be for system maintenance, updates or any other hardware, software or service maintenance that addresses any vulnerabilities that may put Brillium’s data or Customer Data at risk and that such risk is deemed by Brillium to be too great to wait until a Scheduled Maintenance period, and may occur at any time and at the sole discretion of Brillium; (b) restricted access as stated in Section 10.3 (Access Restriction); (c) Force Majeure Events set forth in Section 12.3; (d) down time caused by systems outside of Brillium’s control; (e) past due accounts – Brillium shall not be in breach of the Service Level in months in which Customer’s account is past due; (f) failure of access circuits to the Software unless such failure is caused solely by Brillium; (g) DNS, Proxy or Firewall issues outside the direct control of Brillium; (h) false Service Level breaches reported as a result of outages or errors of any system monitoring or measurement systems; (i) Customer’s acts or omissions that cause disruption to Customer’s use of the Software; (i) Customer reports made more than sixty (60) days after breach of the Service Level as described in this Agreement; (j) Customer’s use of the Software identified as an early release, free version, beta version, trial version or pre-release version, or Customer’s participation in any program which provides a version of the Software not yet generally available to the public; or (k) Customer’s use of the Software provided by Brillium at no cost or otherwise provided to Customer free of charge.
6. LIMITED WARRANTIES; DISCLAIMER; LIMITATION OF DAMAGES
6.1. General. Brillium warrants that: (a) Brillium will perform its responsibilities under this Agreement in a timely, professional and workmanlike manner, consistent with generally accepted industry practices and procedures, and through use of reasonable care; and (b) the Software will function substantially in accordance with their descriptions on the Brillium Website and, to the extent consistent with such descriptions, substantially in accordance with the accompanying Documentation, available on the Brillium Website from time to time. Notwithstanding anything herein to the contrary: (i) Brillium makes no warranties whatsoever for free or beta versions of the Software, (ii) Customer acknowledges that any free or beta versions of the Software are “AS IS” and “WHERE IS” and (iii) Customer assumes all risks associated with using any free or beta versions of the Software.
6.2. Disclaimer of Other Warranties. Except as provided in this Section 6.2, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE SOFTWARE AND ANY OTHER MATERIALS PROVIDED BY BRILLIUM OR ITS REPRESENTATIVES AND SUPPLIERS, ARE PROVIDED “AS IS” AND “WHERE IS,” AND BRILLIUM, ITS REPRESENTATIVES AND SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EITHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE CONDITION OF THE SOFTWARE, CONFORMITY OF THE SOFTWARE TO ANY REPRESENTATION OR DESCRIPTION, AND BRILLIUM SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Brillium also disclaims any and all warranties that the functions contained in the Software will meet Customer’s needs or that the operation of the Software will be uninterrupted or error-free. The information, Software, products, services and other material included in or available through the Software may not be complete, and may include inaccuracies or errors, and may also be modified or deleted from time to time. Customer acknowledges that Brillium has no control over and takes no responsibility for viruses, worms, Trojan horses, disabling devices or similar programs or devices designed to harm Customer’s systems or Customer Data if such programs are introduced to Customer’s Data or systems by Customer’s or a third party’s own actions, systems, computer-based or network infrastructure, or the Internet. Advice, information, products, services or other materials received via the Software should not be relied upon for personal, medical, legal, business, financial or other decisions and is not intended to replace the advice of appropriate and qualified professionals. Customer acknowledges that Customer should consult an appropriate professional for specific advice tailored to these situations. BRILLIUM IS NOT RESPONSIBLE FOR ANY OF CUSTOMER’S DATA RESIDING ON BRILLIUM’S COMPUTER NETWORK, SYSTEMS OR HARDWARE, AND AS SUCH, IT IS CUSTOMER’S SOLE RESPONSIBILITY TO ENSURE THAT ITS DATA AND PRIMARY MEANS OF BUSINESS, ITS CUSTOMER’S DATA AND ITS CUSTOMER’S PRIMARY MEANS OF BUSINESS ARE MAINTAINED AND BACKED UP. Any Customer Data backed up by Brillium is only held by Brillium for thirty (30) days. Customer’s access to and use of the Software is at Customer’s own risk. Brillium makes no guarantees of any kind regarding the dependability, accuracy, security, timeliness or availability of the Software except as provided in this Section or as required by applicable law. NO OTHER ORAL OR WRITTEN INFORMATION PROVIDED BY BRILLIUM, ITS REPRESENTATIVES, AGENTS OR SUPPLIERS SHALL CREATE A WARRANTY OR INCREASE THE SCOPE OF ANY WARRANTY CREATED IN THIS SECTION.
6.3. Limitation of Damages.EXCEPT AS PROVIDED IN THIS SECTION, BRILLIUM’S LIABILITY ARISING UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS RECEIVED BY BRILLIUM FROM CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE FIRST CLAIM BROUGHT HEREUNDER, AND NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR BREACH HEREOF FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. CUSTOMER ACKNOWLEDGES THAT THE FEES AGREED UPON UNDER THIS AGREEMENT ARE BASED IN PART UPON THESE LIMITATIONS. EXCEPT AS PROVIDED IN THIS SECTION, CUSTOMER EXPRESSLY AGREES THAT THE LIMITATION TO DAMAGES IS EXCLUSIVE. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF DAMAGES IN THIS AGREEMENT SHALL NOT APPLY TO: (a) THE PARTIES’ OBLIGATION OF CONFIDENTIALITY UNDER SECTION 14; OR (b) DAMAGES ARISING FROM RECKLESS, WANTON, WILLFUL OR FRAUDULENT CONDUCT OF EITHER PARTY.
7. OWNERSHIP AND MARKS
7.1. Brillium Materials. All information, software and materials of Brillium that Brillium developed or acquired prior to or independently of this Agreement (including the Software), or created as part of this Agreement, and derivative works of any such information, software and materials (the “Brillium Materials”) are and shall remain the exclusive property of Brillium or its licensors.
7.2. Assessment and Respondent Information. Assessment content owned and created by Customer through the use of the Software and all Resultant Data provided by Respondents of Customer Assessments shall be the sole and exclusive property of Customer; provided, however, that Customer shall not sell, license or otherwise commercialize the Resultant Data or Assessments without Brillium’s prior written approval (it being mutually understood that any sale, license or other commercialization of the Resultant Data or Assessments shall be upon such monetary terms as mutually agreed upon between Customer and Brillium). Customer shall comply with all federal, state and international laws in regard to the collection, storage and dissemination of Respondent information whether personal or as otherwise governed by the jurisdiction of the Respondent. For the sole purpose of providing Customer with the Software, Customer grants to Brillium a royalty-free, unlimited, worldwide license to use Customer’s Assessment content, Respondent Data and any other information required by Brillium. Upon termination of this Agreement, Brillium has no obligation to store or maintain any Customer Data (Assessments, Respondent Data or otherwise).
7.3. Marks. Brillium’s trademarks, trade names, service marks and logos, whether or not registered (the “Marks”), shall be the sole and exclusive property of Brillium. Customer may not use, copy or distribute Brillium’s Marks without Brillium’s prior written consent in each instance, which may be withheld in Brillium’s sole and absolute discretion. Customer shall immediately cease any use of Brillium’s Marks upon termination of this Agreement or written notification from Brillium. Any consent granted by Brillium for use of its Marks is temporary, may be withdrawn at any time upon written notice to Customer, and shall, unless otherwise specifically agreed in writing, be construed to apply only to use Brillium’s Marks in conjunction with the provisions of this Agreement. For the purpose of promoting products and services in conjunction with this Agreement, Customer agrees to allow Brillium to use its name in any materials and publications, both physical and electronic. Both Parties agree not to claim any right, title or interest in the other’s trademarks, trade names, service marks and logos or to challenge the rights therein. All use of Brillium’s Marks and the goodwill generated thereby shall inure to the benefit of Brillium.
7.4. Usage Data. The Parties recognize that it is possible for data, such as “hits,” “clickstream data” and other anonymous aggregate data of the like (“Usage Data”), to be collected from Customer and Respondents of the Software. Aggregate, statistical information derived from Usage Data may be used by Brillium for monitoring internal or Service Level information or other reasons as it may determine from time to time.
7.5. Suggestions. Brillium shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Software any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Respondents, relating to the operation of the Software.
8. DATA PRIVACY AND SECURITY
8.1. Security. In providing the Software to Customer, Brillium shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Customer Data. These safeguards include encryption of Customer Data in transmission (using SSL or similar technologies), excluding any external third-party integrations that do not support encryption, which Customer may link to the Software at Customer’s choice.
8.3. EU Data Processing; Addendum. The European Union (“EU”) General Data Protection Regulation (“GDPR”) imposes certain obligations on “Data Controllers” and “Processors” for the processing of personal data of EU residents:
(a) Data Controllers - those entities that determine the purpose and means of the processing of personal data, and
(b) Processors -those entities that act on the instructions of the Data Controller and process the data on its behalf.
European data protection law states that a Data Controller can use a supplier for processing of personal data only if this processing is regulated in a Data Processing Addendum, which shall state the purpose of the processing, what data is processed, how they shall be protected and more. Customer may collect personal data through its use of the Software in accordance with the GDPR. If Customer has determined that it qualifies as a Data Controller under the GDPR, and requires a Data Processing Addendum in place with Brillium (who will process personal data on Customer’s behalf), Customer shall sign Brillium’s DPA in order to ensure compliance with EU law.
9.1. Indemnity by Customer. Customer agrees to defend, indemnify and hold harmless Brillium, its Representatives, Affiliates, Agents, licensors and suppliers from and against any and all claims, losses, liability, costs and expenses (including, but not limited to, reasonable attorneys’ fees) arising from Customer’s violation of this Agreement, any claim from a third party that Brillium’s use of Customer’s name infringes the rights of such third party or Customer’s violation of any third-party’s rights through Customer’s use of the Software or any free or beta version thereof (including, without limitation, infringement of any copyright, violation of any proprietary right and invasion of any privacy rights) provided that: (a) Brillium shall send written notice to Customer of any action, accusation or allegation of infringement within (10) days of Brillium’s receipt thereof; (b) Customer has sole control of the defense and settlement of such claims; and (c) Brillium provides Customer with the information and assistance that is reasonably necessary for the defense and/or settlement of such claims (at the expense of Customer). By posting messages, uploading files, inputting data, submitting any feedback or suggestions, or engaging in any other form of communication with or through any portion of the Software, Customer represents and warrants that Customer owns or otherwise controls the rights necessary to do so and to grant Brillium the licenses set forth in this Agreement.
9.2. Indemnity by Brillium. Except as provided herein, Brillium agrees to defend, indemnify and hold harmless Customer from and against actions by third parties brought against Customer based on a claim that the Software infringes a U.S. patent, copyright or trademark, provided that: (a) Customer shall send written notice to Brillium of any action, accusation or allegation of infringement within ten (10) days of Customer’s receipt thereof; (b) Brillium has sole control of the defense and settlement of such claim; and (c) Customer provides Brillium with the information and assistance that is reasonably necessary for the defense and/or settlement of such claim (at the expense of Brillium). If Customer does not comply with the conditions set forth in this Section 9.2 and such non-compliance materially prejudices Brillium’s ability to defend the claim, Brillium shall be relieved of any and all indemnification obligations. Brillium’s indemnification obligations shall not apply to, and Brillium assumes no liability and Customer accepts such disclaimer for, third-party infringement claims relating to: (i) Software that has been altered by anyone other than Brillium, its Representatives, Affiliates or Agents; (ii) Customer’s combination, operation or use of the Software with programs, data, methods or technology if the infringement would have been avoided without the other programs, data, methods, or technology; (iii) Customer’s use of any free or beta versions of the Software; or (iv) improper use of the Software by Customer, Customer’s Representative, Affiliates or Agents, if the infringement would have been avoided by another use. In the event of a third-party allegation of infringement, Brillium may, at its sole discretion, but need not, either (1) replace or modify the Software in an attempt to make it non-infringing, and in such case Brillium shall use best efforts to ensure that Customer’s use of the Software is not interrupted for an unreasonable amount of time, although uninterrupted and equal functionality use is not guaranteed; or (2) prevent Customer from using the Software or part thereof, and if appropriate, provide refunds and/or credits to Customer in a fair and equitable manner.
9.3. Sensitive Personal Information. The Software allows Customer to collect various types of data and information from Respondents. Customer acknowledges that the collection and use of SPI is not required to gain full benefit from the use of the Software. If Customer chooses to collect any SPI through the use of the Software, Customer accepts all liability related to such SPI, including local, state, federal and international obligations, and agrees to defend, indemnify and hold harmless Brillium, its Representatives, Affiliates, Agents, licensors and suppliers from and against any and all claims, losses, liability, costs and expenses (including, but not limited to, reasonable attorneys’ fees) arising from the collection, any access to or in any way related to the SPI Customer may choose to collect.
9.4. Waiver of Subrogation by Customer. Except where prohibited by law, Customer hereby waives its rights to recover and its insurers’ rights of subrogation and rights to recover, as applicable, against Brillium and its Affiliates under any insurance policy.
10. PROVISIONS RELATING TO BRILLIUM SOFTWARE
10.1. Links to Third-Party Sites. Links within the Software may let Customer leave the Software. Customer acknowledges that the linked sites are not under the control of Brillium and that Brillium is not responsible for the contents or operations of such linked sites or any link contained in such linked sites, or any changes or updates to such sites. Brillium is not responsible for any other form of transmission received from any linked sites. The inclusion of any link within the Software does not imply endorsement by Brillium of the linked sites or any association with their operators. The Software allows Customer to create links that allow Respondents to be directed to external websites. Customer is solely responsible for any links it creates and presents through the use of the Software.
10.2. Acceptable Use Limitation. The Software is provided to assist Customer with the Assessment of Resultant Data. Customer’s right to use the Software is personal to Customer. Customer shall not use the Software for any purpose that is unlawful or prohibited by this Agreement or applicable law. Except for Customer’s Assessment content and Resultant Data, Customer may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information, software, products, services or benefits obtained from the Software, associated Brillium websites or Brillium, except as expressly provided herein. In addition, Customer may not use the Software to:
(a) defame, abuse, harass, threaten or otherwise violate the legal rights of others;
(b) conduct or manipulate illegal, unauthorized or unsolicited Assessments, certifications, exams, quizzes, tests, surveys or any other evaluation;
(c) publish, post, distribute, disseminate or link to any: (i) inappropriate, profane, defamatory, infringing, obscene, adult content, nude, indecent or unlawful topic, name, material or information; (ii) software or other material protected by intellectual property laws, copyright licenses, rights of privacy or publicity or other proprietary rights, unless Customer owns such rights or has received all necessary consents for Customer’s use of such intellectual property; or (iii) software or other material that contains viruses or corrupted files or that may be, or are, intended to damage the operation of another’s computer, or written to defeat the security measures of any computer, system or programs;
(d) harvest or otherwise collect information about third parties, including e-mail addresses, without the express written consent of such third parties;
(e) restrict or inhibit any other Persons from using and enjoying its rights in, interfering with or disrupting the Software or any server or network connected thereto;
(f) violate any applicable government laws or regulations; or
(g) violate any third-party rights in any manner.
10.3. Access Restriction. Brillium reserves the right to disable or restrict any access to the Software at any time in order to protect the integrity of its systems and data and its customers’ data. Rights to access restrictions extend to Brillium’s partners or network service providers. Brillium will make reasonable attempts to notify its customers prior to any impending access restrictions. Brillium reserves the right to deny any user, in its sole discretion, access to the Software or any portion thereof without notice if it believes the customer experience, Software, Customer Data or related systems are at risk from unauthorized users. Customer is responsible for safeguarding the confidentiality of Customer’s passwords, username(s), account identifier(s), access key(s) or encryption key(s) issued to Customer by Brillium, and for any use or misuse of Customer’s account or the Software resulting from any third party using a password, username or account identifier issued to Customer.
11. THIRD-PARTY SERVICES
11.1. External Sites. The Software may contain links to, or otherwise may allow Customer to connect to and use certain third-party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with the Software. If Customer decides to access and use such Other Services, be advised that Customer’s use is governed solely by the terms and conditions of such Other Services, and Brillium does not endorse, is not associated with, is not responsible for, and makes no representations as to such Other Services, their content or operations, the manner in which such third parties handle Customer Data, or any link contained in such linked sites or Other Services, or any changes or updates to such sites. Brillium is not responsible for any other form of transmission received from any linked sites or Other Services. Furthermore, Brillium is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s access or use of any such Other Services, or Customer’s reliance on the privacy practices or other policies of such Other Services. The Software allows Customer to create links that allow Respondents to be directed to external websites. Customer is solely responsible for any links it creates and presents through the use of the Software.
11.2. Integration. The Software may contain features that enable various Other Services (including, but not limited to, social media services like Facebook, Instagram and Twitter) to be directly integrated into Customer’s experience with the Software. To take advantage of these features, Customer will be required to register for or log in to such Other Services on their respective websites. By enabling Other Services within the Software, Customer is allowing Brillium to pass Customer’s log-in or other authentication or identification information to these Other Services for this purpose.
12.1. Survival. The Parties agree that Section 3 (Billing and Payment), Section 5 (Service Level Warranty), Section 6 (Limited Warranties; Disclaimer; Limitation of Damages), Section 7 (Ownership and Marks), Section 9 (Indemnification; Waiver of Subrogation), Section 12 (Miscellaneous), Section 14 (Confidentiality), any accrued but unpaid payment obligations and any other provision of this Agreement that by its sense and context so require, shall survive the termination of this Agreement.
12.2. Assignment. Customer shall not assign this Agreement without first obtaining the prior written consent of Brillium. Brillium shall have the right to assign this Agreement to any other Person of its choice, along with any and all of its rights, duties or liabilities under this Agreement at any time in its sole and absolute discretion and without obtaining the consent of Customer. Without waiver of the foregoing provisions, all of the rights, benefits, duties and liabilities of the Parties hereto shall inure to the benefit of and be binding upon the Parties and their respective successors and assigns.
12.3. Force Majeure. Brillium shall not be liable or deemed to be in default hereunder due to any Force Majeure Event. The term “Force Majeure Event” shall mean the occurrence of an event arising out of or resulting from causes beyond the reasonable control of Brillium, including, but not limited to, incapacity due to an act or regulation of public authority; fire; riot or civil commotion; labor dispute; terrorist acts or threats; acts or declarations of war; epidemic or pandemic; quarantine restriction, public health restriction or advisory relating to such epidemic or pandemic; failure or substantial and extraordinary delay of necessary transportation services; war conditions; emergencies; and inclement weather or act of God.
12.4. Export Compliance. The Software, Resultant Data, Customer Data, other technology made available to Customer and derivatives thereof may be subject to export control laws and regulations of the U.S. and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Respondents, Representatives, Affiliates or Agents to access or use the Software and Assessments in a U.S. embargoed country or in violation of any U.S. export law or regulation. Customer gives Brillium assurances that it and its Representatives, Affiliates and Agents are not located in, under control of, or a national or resident of any restricted country covered by the U.S. export control laws or regulations.
12.5. Waiver of Jury Trial. THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ALL OF THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY TERMS OR PROVISIONS OF THIS AGREEMENT. NO PARTY SHALL SEEK TO CONSOLIDATE ANY PROCEEDING IN WHICH THE RIGHT TO A TRIAL BY JURY HAS BEEN WAIVED WITH ANY OTHER PROCEEDING IN WHICH THE RIGHT TO A TRIAL BY JURY CANNOT BE, OR HAS NOT BEEN, WAIVED. THE TERMS AND PROVISIONS HEREOF SHALL NOT BE SUBJECT TO ANY EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH, OR REPRESENTED TO, ANY OTHER PARTY THAT THE TERMS AND PROVISIONS OF THIS SECTION WILL NOT BE ENFORCED FULLY IN ALL INSTANCES.
12.6. Governing Law; Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida without regard to the principle of the conflict of laws. Venue for any action commenced under this Agreement will be the appropriate state or federal court located in and around St. Johns County, Florida and each Party consents to the venue and jurisdiction of the courts set forth above. Use of the Software is unauthorized in any jurisdiction that does not give effect to this Section.
12.7. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable or void, then such provision shall be amended and modified so as to be reasonable and enforceable, if possible. Otherwise, such provisions shall be severed from this Agreement and ineffective to the extent necessary to prevent invalidation of the remainder of the provisions of this Agreement or the application of the provision to the Parties or circumstances.
12.8. Waiver. The waiver by any Party of a breach or violation of any provision of this Agreement shall not operate as or be construed to constitute a waiver of any subsequent breach of the same or another provision. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving.
12.9. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter contained herein and supersedes all prior agreements and understandings, oral or written, with respect to the subject matter contained herein. Brillium may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. Brillium will notify Customer of such changes and direct Customer to the latest version.
12.10. Independent Contractor. Brillium is providing the Software to Customer as an independent contractor. This Agreement shall not be construed as creating a partnership, joint venture or employment relationship between the Parties.
12.11. Headings. The headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a part thereof, affect the meaning or interpretation of this Agreement or of any term or provision hereof.
12.12. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.13. Attorneys’ Fees. In the event any Party institutes legal proceedings in connection with, or for the enforcement of, this Agreement, the prevailing Party will be entitled to recover reasonable costs associated with such action, attorneys’ fees, paralegals’ fees and legal assistants’ fees at all levels, including pre-trial, trial and appellate levels, from the non-prevailing Party.
12.14. Notices. All notices, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given: (a) if delivered in person, when delivered; (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (d) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses set forth on the signature page hereto (or to such other addresses as the Parties may designate by notice to the other Parties in accordance with this Section).
13. FEDERAL GOVERNMENT END USE PROVISIONS
If Customer is a U.S. federal government end user, the Software is a “Commercial Item” as that term is defined in the Code of Federal Regulations (“C.F.R.”) at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Software is licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.
Each Party acknowledges that it will receive detailed information concerning the business and affairs of the other Party in the course of its performance of this Agreement, which constitutes confidential and proprietary information and trade secrets of the other Party. Therefore, except as required by applicable law, neither Party shall, at any time or in any manner, directly or indirectly, divulge, disclose, communicate or otherwise disseminate to any Person any information concerning the business, properties, financial affairs, intellectual property, projections, customers, vendor relationships, plans or operations of the other Party, or any other information of any kind regarding the other Party’s business (the “Confidential Information”); provided that, the restrictions set forth in this Section shall not apply to: (a) information in the public domain, (b) information lawfully disclosed to Brillium or the Customer, as applicable, by a third party under no obligation of secrecy with respect thereto, or (c) information in the possession of Brillium or the Customer, as applicable, prior to its receipt from the other as evidenced by written documentation. Without limitation to the foregoing, the following shall be considered “Confidential Information”: the terms of this Agreement; information relating to trade secrets and confidential business lists, professional contacts, records, and information; prospective and actual client or customer names, contacts and addresses; client or customer records; business techniques, policies, methods and procedures; pricing and marketing information; organizational structure; profit sharing and ownership information; supplies and supply lists; suppliers’ names and addresses; advertising, advertising copy and programs; business reports, financial statements and reports, and operating statements; employees, Agents, subagents, and independent contractor names, addresses, lists, compensation and benefits, productivity and information; computer programs, computer software (including the Software), databases, and data; all free or beta versions of the Software; information technology processes and techniques; business processes; and know-how, discoveries, inventions, writings, conceptions, knowledge, information, plans, programs, and tangible expressions of ideas. Each Party shall use at least the same degree of care that it uses to protect the confidentiality of its own Confidential Information. Each Party acknowledges and agrees that the Confidential Information of the other Party is important to the other Party’s business and goodwill and that the remedy at law would not sufficiently protect a Party in the event of any violation of this Section. Accordingly, the non-breaching Party shall be entitled, upon application to a court of competent jurisdiction, to obtain injunctive relief to enforce the provisions of this Section, which injunctive relief shall be in addition to any other rights or remedies available to such Party. Upon termination of this Agreement for any reason, each Party and its Representatives, Affiliates and Agents shall destroy or return to the other Party any and all materials containing any Confidential Information. Notwithstanding anything herein to the contrary, Customer acknowledges that certain Customer Data will be delivered to third parties as a result of Customer’s normal and intended use of the Software, and that Brillium is not responsible for maintaining the confidentiality of such Customer Data.
(a) “Affiliates” shall mean business entities under the majority ownership or control of a Party.
(b) “Agents” shall mean internal or external consultants, contractors or other Persons not employed by a Party but acting under the direction or control of such Party and providing services directly for such Party.
(c) “Assessment” shall mean a test, survey, questionnaire, or other form of data collection or measurement tool created using the Software.
(d) “Author” or “Authoring” shall mean the use of the Software to create Assessments.
(e) “Brillium Website” shall mean www.brillium.com.
(f) “Customer Data” shall mean all of the data collectively owned by Customer. For the avoidance of doubt, this includes Assessment content, Resultant Data, images, documents, videos or other information and material owned, licensed, created or delivered by Customer through the use of the Software.
(g) “Customer Portal” shall mean the Internet or web-based means by which Customer can request Support Services, view and download support Documentation, view contract entitlements and information intended to assist Customer in the use of the Software and otherwise communicate with Brillium as provided herein.
(h) “Documentation” shall mean the user manuals and other written materials (regardless of the medium in which they are stored or displayed) that relate to the Software and which are provided to Customer for its use in evaluating and using the Software.
(i) “Effective Date” shall mean the date this Agreement becomes effective, determined by the earlier occurrence of: (a) the date of the first use of the Software or (b) the date of Customer’s Order for the Software.
(j) “Party” or “Parties” shall mean Customer or Brillium individually or collectively, as the context requires.
(k) “Person” shall mean any individual (natural or otherwise) and any corporation, limited liability company, association, partnership, company, firm, business, cooperative, trust, social club, fraternal organization or other aggregation of individuals.
(l) “Reporting” shall mean the ability of Customer to select, view, download, analyze or otherwise interact with the data created through the use of the Software.
(m) “Representatives” shall mean a Party’s directors, officers, managers and employees.
(n) “Respondent” shall mean a Person taking, processing, completing, answering or responding to or otherwise providing data in the form of Resultant Data to or for an Assessment using the Software.
(o) “Respondent Report” shall mean a compiled and static presentation of a single Respondent’s Resultant Data for a Person or multiple Assessments, including, but not limited to, certificates, stickers and badges (electronic or otherwise).
(p) “Resultant Data” shall mean the answers, comments, feedback and other data created and recorded through the Respondent’s completion of an Assessment.
(q) “Sensitive Personal Information” or “SPI” regarding non-EU residents shall mean protected information and data elements, legally defined or otherwise (also Personal Information or Personally Sensitive Information) and shall include, but not be limited to: Social Security Numbers, financial account numbers (including personal credit card numbers), drivers’ license numbers, Protected Health Information, personally identifiable student information, personally identifiable employee information, proprietary research data, confidential legal data, confidential financial data and other personal proprietary data that should not be shared with the public. SPI for EU residents shall mean racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, data concerning health, data concerning sex life or sexual orientation of an individual, and data relating to criminal convictions and offenses.
(r) “Software” shall mean the computer program software, software provided as a service or computer software application service provided by Brillium to Customer under this Agreement, including Brillium Personal, Brillium Professional and Brillium Enterprise, as stated on the Brillium Website, including all patches, updates, modifications, changes and upgrades thereto. Unless otherwise specifically provided in this Agreement, “Software” shall also include any elements or components provided by third parties that Brillium has integrated or incorporated into, attached to or otherwise made a part of the Software.
Terms of Service Agreement Version: 16.10 (03/17/2021)