SOFTWARE AS A SERVICE
TERMS OF SERVICE AGREEMENT
In order to use the Brillium Author, Brillium Personal, Brillium Professional, or Brillium Enterprise Software as a Service and website (“Services”), Customer must be of legal age and first agree to this Software as a Service Terms of Service Agreement. Customer may not use the Services if Customer does not accept the Agreement. Customer can accept the Agreement by either clicking to accept or agree to the Agreement upon order, where this option is made available to Customer by Brillium; or by actually using the Services. In the latter case, Customer understands and agrees that Brillium will treat Customer’s use of the Services as acceptance of the Agreement from that point onwards. By using Brillium software and/or services and/or website Customer hereby agrees to be bound by this Agreement. Otherwise, please discontinue the use of this website and/or Brillium Software and/or Service(s)
“Affiliates” shall mean business entities under the majority ownership or control of a Party.
“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.
“Annual Service Fees” shall mean the periodic fees for use of the Software, Services and related support provided by Brillium to be paid on or before the beginning of the annual term of this agreement.
“Assessment” shall mean a test, survey, questionnaire, or other form of data collection or measurement tool created using the Software or Services.
“Assessment Result” shall mean an individual non-refundable unit that is the Resultant Data for a single Assessment. Each Assessment Result shall equal a unique single set of Resultant Data for a single Assessment for a single Respondent. For purposes of clarification, an Assessment Result is created each and every time a Respondent completes an Assessment, even if a Respondent completes an Assessment that such Respondent previously completed.
“Author” or “Authoring” shall mean the use of the Software and Services to create Assessments.
“Brillium API” shall mean the Brillium Application Program Interface and is a set of routines, protocols, and tools that make it easier for programmers to build software applications that can interact with Brillium Software and Services data. For the purpose of clarity, the Brillium API is not an application in and of itself, but a set of common building blocks that a software programmer may use within their own software code.
“Concurrent Results” shall mean the total number of concurrent Assessment Results stored in the Services and made available to Customer for access, review, use, reporting or other activity at any one time.
“Concurrent Result Storage” shall mean the space available for the storage of concurrent Assessment Results. Concurrent Result Storage space is represented by the number of Assessment Result data records that may be stored in the Services and made available to Customer for access, review, use, reporting or other activity at any one time.
“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 Services.
“Customer Support Portal” shall mean the Internet or web-based means by which Customer can request support services, view and download support documentation, view contract entitlements or otherwise interact with people, and information intended to assist Customer in the use of the Services.
“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 Services and which are provided to Customer for its use in evaluating and using the Services.
“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 and/or Services; or b.) the date of Customer’s Software and Services order, invoice or payment for the Software and/or Services.
“Include” and variations thereof shall mean “include without limitation” and “including without limitation”.
“Max Annual Results” shall mean the total maximum number of Assessment Results that may be created by Customer through the use of the Services (i.e. through the offering and subsequent delivery of Customer’s Assessments) during each calendar twelve (12) month period, starting from the Effective as observed in New York, New York USA.
“Party” or “Parties” shall mean, individually, Customer or Brillium as the context requires and, collectively, both Customer and Brillium.
“Person” shall mean any individual, natural or otherwise, and any corporation, limited liability company, association, co partnership, company, firm, business, cooperative, trust, social club, fraternal organization, or other aggregation of individuals.
“Reporting” shall mean the ability of Customer to select, view, download, analyze or otherwise interact with the data created through the use of Brillium Software and Services.
“Respondent Report” shall mean a compiled and static presentation of a single Respondent’s Resultant Data for an individual or multiple Assessments, including but not limited to certificates, stickers, badges, electronic badges.
“Representatives” shall mean a Party’s directors, officers, managers, and employees.
“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 or Services.
“Resultant Data” shall mean the answers, comments, feedback and other data created and recorded through the Respondent’s completion of an Assessment.
“Sensitive Personal Information” or “SPI” 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 (SSN), financial account numbers (including personal credit card numbers), drivers license numbers, Protected Health Information (“PHI”), personally identifiable student information, personally identifiable employee information, proprietary research data, confidential legal data, confidential financial data, other personal proprietary data that should not be shared with the public.
“Service Fees” shall mean the periodic fees for the Software, Services and related support provided by Brillium.
“Services” shall mean Brillium’s obligation to allow Customer use of the Software through the Brillium Web Site, and the functionality of Brillium Personal and Brillium Professional as stated on the Brillium website along with any assistance and support services that may be offered to Customer.
“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 Software as a Service, Brillium Professional Software as a Service, and the Brillium API, 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.
Whereas, Brillium, is a provider of Assessment Authoring, Reporting and delivery software and related services ordered by Customer and offered under the “Brillium”, “Testcraft”, “ingeniousTestcraft” or successor brands, 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 and Services provided by Brillium.
Now, therefore, in consideration for the mutual promises and covenants contained herein, Brillium and Customer hereby agree as follows:
1. TERMS AND INTERPRETATION
Terms. Certain terms used in this Agreement are defined in (Definitions). Other terms are defined in other portions of this Agreement. Terms other than those defined within this Agreement but known in the information technology and software industries shall be interpreted in accordance with their generally known trade usage. All other terms shall be given their plain English meaning. Unless the context otherwise requires, words importing the singular include the plural and vice-versa.
2. GRANT OF LICENSE
2.1 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 to access and use the Software and related Services described herein (the “License”). 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 and Services for “internal use.” “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 Affiliates provided that Customer’s Representatives, Affiliates, and Agents have the same obligations as Customer under this Agreement.
b.) provide access to Assessments created through the use of the Software and Services 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 Article 2 shall change Customer’s Indemnification obligations in this Agreement.
c.) provide access to Respondent Reports, whether electronic or printed, to any Respondents.
2.2 Resale. Customer may not resell the Services under its own name or any other name or include the Services granted under this Agreement within its own product or service offerings without express written authorization from Brillium. The term and termination of any such License to resell the Services shall coincide with the Term and Termination provisions of this Agreement unless otherwise agreed to by Brillium in writing.
2.3 Restrictions. Customer shall keep intact all and may not alter any copyright and other proprietary notices contained in such 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, 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.
2.4 Term. This Agreement shall commence on the Effective Date and shall continue in force for a fixed term of one (1) year (the “Initial Term”), unless terminated earlier in accordance with the provisions of this Agreement. This Agreement shall automatically renew for additional one (1) year periods (each, a “Renewal Term”) at the end of the Initial Term or any Renewal Term, unless the Agreement is terminated pursuant to the terms of this Agreement.
3. BRILLIUM SOFTWARE SERVICE DESCRIPTION
The Software and Services subscription may include the Brillium Software and Services (offered under the subscription plans Brillium Author, Brillium Personal and Brillium Professional) and the Brillium API, which provide comprehensive assessment Authoring, Reporting, delivery and data access features in accordance with the Documentation provided unless otherwise stated in this Agreement. Due to Brillium’s continuous effort to enhance user experience, maintain compliance with industry standards and practices, the nature of the Software and Services, and the nature of this Agreement, these features are subject to change at any time without notice to Customer. Nothing in this Section 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 www.brillium.com.
4. SERVICE INFORMATION AND FEES.
Descriptions and fees for Brillium’s Software and Services shall all be set forth on the Brillium website at www.brillium.com.
5. BILLING AND PAYMENT
5.1 Billing. All fees shall be billed annually or monthly in advance in accordance with Customer’s chosen subscription and the offers Brillium makes available to its customers from time to time. Customer hereby authorizes Brillium to issue a bill in advance for all applicable annual or monthly service fees and any additional expenses incurred by Customer or on Customer’s behalf in connection with Customer’s use of the Software and Services. Customer shall be responsible for all fees, expenses, charges, duties, taxes, and assessments arising out of Customer’s use of the Services. All fees and expenses are due and payable upon receipt of invoice receipt.
5.2 Payments. The Software and Services are made available to Customer on a annual or monthly pay-as-you-go basis ("Payment Term"). 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 normal course of business. Brillium shall make every effort to promptly bill Customer for the Services. All subscriptions to the Software and Services will renew automatically based on Customer’s subscription plan renewal cycle. Brillium shall provide an interface through the Software and Services 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, or may obtain a receipt from within the Software and Services in order to track the status of Customer’s active subscription(s).
5.3 Billing Contact. Brillium shall direct all payment and billing matters to Customer using the contact information provided by Customer upon order. Customer may change its billing information as needed through the Software and Services, via the payment website provided to Customer upon order, or by contacting Brillium Inc. at 101 Marketplace Ave. Ste 404-405 Ponte Vedra, FL 32081 or upon Brillium’s request. It is Customer’s sole responsibility to inform Brillium of any changes to Customer’s billing information so that Customer’s use of the Services is not interrupted.
5.4 Taxes. Customer shall pay any and all federal, state, and local sales, use, excise, and other taxes applicable for its use of the Services.
5.5 Modifying Your Subscription. Customer’s subscription may be modified at any time. When choosing to upgrade the Services 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 monthly billing cycle, a prorated charge or credit may not be shown in the current month, 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 billing cycle, there are no refunds or credits for partial months of Service, plan downgrades, or refunds for unused time if Customer cancels a subscription to the Software and Services 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’s customers. Downgrading a subscription plan may cause the loss of Customer content and/or 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, API access or request activity. or other excessive stress on the Software or Services.
5.6 Cancellation by Customer. Customer is responsible for cancellation of the Software and Services and the subsequent termination of this Agreement. Customer may cancel the Services at any time, through the use of a button, link or other method made available through the Software and Services, or by contacting Brillium and providing written notification of such, provided receipt of such notification is confirmed by Brillium. Upon such termination, Brillium shall remove Customer access to the Software and Services at the end of the current Payment Term, or immediately if Brillium is requested to do so by customer. Brillium preserves the right to delete Customer content and/or data in accordance with law or Brillium’s normal course of operation.
5.7 Overdue Charges. If Customer fails to pay the subscription fees on time, or if Customer 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, then Customer’s entire subscription and access to the Software and Services may be suspended or cancelled.
5.8 Cancellation by Brillium. Brillium reserves the right to (i) modify or discontinue, temporarily or permanently,the Software and Services (or any part thereof) and (ii) refuse any/all current and future use of the Service, suspend or cancel Customer’s account or any part thereof (or Customer’s use of the Software and Services), and remove and discard any of Customer content within the Service 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 use of the Software and Services, 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 and Services.
6. SUPPORT SERVICES
6.1 Support. Brillium will provide email-based support to Customer (“Support Service” or “Email Support”) from 9:00 AM to 6:00 PM as observed in New York, NY, USA, Monday through Friday (“Support Hours”). Support Service 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.
6.2 Support Procedure. Brillium shall provide Support Service only to Customer. For the purpose of clarity, Customer is a single named person or individual who has paid for the service and is identified on the Service account, invoice and/or order form. Customer shall provide Brillium with a full name and contact information. Customer may update all contact information directly through the Software, Services, Brillium’s website or web-based Customer Support Portal as made available to Customer by Brillium.
6.3 Respondent Support. Customer will be solely responsible for supporting all Customer Respondents.
6.4 Report of Malfunction. With respect to a report of any malfunction, when Customer makes such a report, Customer shall describe in reasonable detail the circumstances under which the malfunction occurred or is occurring. Customer shall report malfunctions either by email through the use of the Software and Services, as directed by Brillium staff, Brillium’s website or web-based Customer Support Portal. If a Support Staff member is not immediately available during the Support Hours, one will be assigned to respond to Customer within the next two (2) business days of Customer’s original report. The Support Staff members shall (a) classify the malfunction as a Severity Level 1, 2, 3 or 4 malfunction, as defined below, and (b) seek to resolve the malfunction. If the Support Staff member handling a certain report is unable to provide adequate assistance to Customer, then Brillium will supply one or more alternative Support Staff member(s) who are able to respond in a reasonable manner.
6.5 Malfunction Classifications. The definitions of the malfunction classifications are as follows:
- Severity Level 1: A problem that either renders Customer’s use of the Services inoperative, or causes an unrecoverable loss or corruption of Customer’s data.
- Severity Level 2: A problem that causes a significant and ongoing interruption and materially interferes with Customer’s use of the Services.
- Severity Level 3: A problem that causes Customer’s use of the Services not to function in accordance with applicable specifications, but causes only a minor impact on Customer’s use of the Services and for which a circumvention is available.
- Severity Level 4: Any general questions and wishes pertaining to the Services and all malfunctions that are not included in the other malfunction classifications.
6.6 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 2 malfunction. For a Severity Level 3 or 4 malfunction, Brillium will provide a correction, workaround, or response as promptly as reasonably achievable. Brillium will consider all support matters 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.
6.7 Updates. Brillium shall provide Customer with updates and improvements to the Software if and when Brillium releases them.
6.8 No Warranty. Nothing in this Article 6 shall be construed to create any warranties not expressly stated in Article 8 (Limited Warranties; Disclaimer; Limitation of Damages).
7. SERVICE LEVEL
7.1 Service Level. Brillium shall make efforts to ensure the Services will be available for normal use 99.5% of the time each calendar month (inclusive of scheduled maintenance periods as defined in this Article), with the exception of exclusions listed in this Article 7 (“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 promises. Brillium reserves the right to change the Scheduled Maintenance periods and schedule(s) at any time
7.2 Exclusions. The following exclusions shall apply to the Service Level:
- 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 Customer or Brillium data at risk and that such risk is deemed by Brillium to be too great to wait until a Scheduled Maintenance period. Emergency Maintenance may occur at any time and at the sole discretion of Brillium;
- Restricted access as stated in Section 12.4 (Access Restriction) of this Agreement
- Force Majeure – lack of availability due to force majeure conditions as described in Article 14 (Miscellaneous);
- Down time caused by systems outside of Brillium control;
- Failure of access circuits to the Services unless such failure is caused solely by Brillium;
- DNS, Proxy, or Firewall issues outside the direct control of Brillium;
- False Service Level breaches reported as a result of outages or errors of any system monitoring or measurement systems;
- Customer’s acts or omissions that cause disruption to Customer’s use of the Services; or
- Customer reports made more than 60 days after breach of the Service Level as described in this Agreement.
- Customer use of the Software identified as an early release, or pre-release version; or Customer participation in any program which provides a version of the Software not yet generally available to the public; or
- Customer use of the Software identified as a trial version or during a trial period;
- Customer use of the Software provided by Brillium at no cost or otherwise provided to Customer free of charge.
8. LIMITED WARRANTIES; DISCLAIMER; LIMITATION OF DAMAGES
8.1 General. Customer acknowledges that Brillium has no control over and takes no responsibility for viruses, worms, Trojan horses, disabling devices, or similar program or device designed to harm Customer’s systems or data if such programs are introduced to Customer’s data or systems by Customer’s or third parties own actions, systems, computer-based or network infrastructure, or the Internet. Brillium does not warrant that the Service will be uninterrupted, timely, error-free, or virus-free, and no information or advice obtained by Customer from Brillium shall create ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. Brillium warrants that the Software and Services will function substantially in accordance with their descriptions in this Agreement and, to the extent consistent with such descriptions, substantially in accordance with their accompanying documentation.
8.2 Disclaimer of Other Warranties. Except as provided in this Article, Customer expressly acknowledges and agrees that the Software, Services, and any other materials provided by Brillium OR ITS REPRESENTATIVES AND SUPPLIERS, are provided “as is” AND BRILLIUM, ITS REPRESENTATIVES AND SUPPLIERS expressly disclaim all warranties, EITHER expressed, implied, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES including but not limited to THE CONDITION OF THE SOFTWARE, CONFORMITY OF THE SERVICES 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 or other portions of the Services will meet Customer’s needs or that the operation of the Software or other portions of the Services will be uninterrupted or error-free. The information, software, products, services, and other material included in or available through the Services may not be complete, and may include inaccuracies or errors, and may also be modified or deleted from time to time. Advice, information, products, services, or other materials received via the Services 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 its situation. 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 RESPONSIBILITY TO ENSURE THAT ITS PRIMARY MEANS OF BUSINESS IS MAINTAINED. Customer’s access to and use of the Services is at Customer’s own risk. Brillium makes no guarantees of any kind regarding the dependability, accuracy, security, timeliness, or availability of the Services except as provided in this Article. 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 Article 8.
8.3 Limitation of Damages. EXCEPT AS PROVIDED IN THIS Article, BRILLIUM’S LIABILITY ARISING UNDER THIS AGREEMENT SHALL NOT EXCEED THE ANNUAL AMOUNT RECEIVED BY BRILLIUM FROM CUSTOMER 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 Article, CUSTOMER EXPRESSLY AGREES THAT THE LIMITATION TO DAMAGES IS EXCLUSIVE. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF DAMAGES IN THIS AGREEMENT SHALL NOT APPLY TO (i) THE’ DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT (ii) ANY OTHER CUSTOMER OBLIGATIONS UNDER THIS AGREEMENT FOR WHICH THESE LIMITATIONS SHOULD BY THEIR NATURE AND INTENT APPLY, INCLUDING BUT NOT LIMITED TO ARTICLE 14, (iii) DAMAGES ARISING FROM RECKLESS, WANTON, WILLFUL, OR FRAUDULENT CONDUCT.
9. OWNERSHIP AND MARKS
9.1 Brillium Materials. All information, software, and materials of Brillium that Brillium developed or acquired prior to or independently of this Agreement (including the Software and Services), 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.
9.2 Assessment and Respondent Information. Assessment content owned and created by Customer through the use of the services and all Resultant Data provided by Respondents of Customer Assessments shall be the sole and exclusive property of Customer. Customer shall comply with all federal, state and international laws in regards to the collection, storage and dissemination of Respondent information whether personal or as otherwise governed by the jurisdiction of the Respondent. Upon Termination of this Agreement or cancellation of Customer subscription(s), Brillium has no obligation to store or maintain any Customer Data, including but not limited to Assessments, Respondent data, and Resultant Data.
9.3 Marks. Brillium trademarks, trade names, service marks, and logos, whether or not registered, (“Marks”), shall be the sole and exclusive property of Brillium. Customer may not use, copy, or distribute the Brillium’s Marks without prior written consent in each instance. Customer shall immediately cease any use of Brillium Marks upon written notification. Any consent granted by Brillium for use of its Marks is temporary, may be withdrawn at any time upon notice to Customer, and shall, unless otherwise specifically agreed in writing, be construed to apply only to use of 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 Marks or to challenge the rights therein. All use of the Marks of both Parties and the goodwill generated thereby shall inure to the benefit of their respective owners.
9.4 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 users and Respondents of the Services. 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.
9.5 Assessment and Respondent Information. Assessment content owned and created by Customer through the use of the Services and all Resultant Data provided by Respondents of Customer Assessments shall be the sole and exclusive property of Customer. Customer shall comply with all federal, state and international laws in regards 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 Services, 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).
10. DATA PRIVACY AND SECURITY
10.1 Security. In providing the Software and Services 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), except for certain external third party integrations that do not support encryption, which Customer may link to the Software and Services at Customer’s choice.
10.3 EU Data Processing. On May 25, 2018, the European Union (EU) laws that apply to the processing of personal data of EU residents will become effective. The new GDPR regulation imposes certain obligations on:
- Controllers - those entities that determine the purpose and means of the processing of personal data
- Processors - those entities that act on the instructions of the controller and process the data on its behalf
Data Processing addendum
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 (DPA). The DPA 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 Brillium Software and Services. If Customer has determined that it qualifies as a Data Controller under the GDPR, and requires a DPA in place with Brillium, who processes personal data on Customer's behalf, Customer can sign our Brillium GDPR Compliant Processor DPA in order to ensure compliance with EU law.
11.1 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 or Customer’s violation of any third-party’s rights through Customer’s use of the Services, (including, without limitation, infringement of any copyright, violation of any proprietary right, and invasion of any privacy rights) provided that (i) Brillium shall send prompt written notice to Customer of any action, accusation, or allegation of infringement; (ii) Customer has sole control of the defense and settlement of such claims; and (iii) 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 Services, Customer warrants and represents that Customer owns or otherwise controls the rights necessary to do so and to grant Brillium the licenses set forth in this Agreement.
11.2 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 infringed a United States patent, copyright, or trademark, provided that (i) Customer promptly notifies Brillium; (ii) Brillium has sole control of the defense and settlement of such claim; and (iii) 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 Article 11 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 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; or (iii) 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 (i) 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 use is not guaranteed; or (ii) prevent Customer from using the Software or part thereof.
11.3 Sensitive Personal Information. The Software and Services allow Customer to collect various types of data and information from Respondents at Customer’s choice. Customer acknowledges that the collection and use of SPI is not required to gain full benefit from the use of the Software and Services. If Customer chooses to collect any SPI through the use of the Services, Customer accepts all liability related to such SPI, including local 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.
12. PROVISIONS RELATING TO BRILLIUM WEB SITE
12.1 Brillium Web Site. “Brillium Web Site” shall mean the web site(s) and other forms of electronic communication that constitute a part of the Software and Services.
12.2 Links to Third Party Sites. Links within the Brillium Web Site may let Customer leave the Brillium Web Site. Customer acknowledges that the linked sites are not under the control of Brillium and that Brillium is not responsible for the contents or operation 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 web casting or any other form of transmission received from any linked sites. The inclusion of any link within the Brillium Web Site does not imply endorsement by Brillium of the linked sites or any association with their operators. The Services allow Customer to create links that allow Respondents to be directed to external web sites. Customer is solely responsible for any links it creates and presents through the use of the services. Customer acknowledges that the linked sites are not under the control of Brillium and that Brillium is not responsible for the contents or operation of such linked sites or any link contained in such linked sites, or any changes or updates to such sites.
12.3 Acceptable Use Limitation. The Brillium Web Site is provided to assist Customer with the assessment of Resultant Data. Customer’s right to use the Brillium Web Site is personal to Customer. Customer shall not use the Brillium Web Site for any purpose that is unlawful or prohibited by this Agreement. 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 Brillium Web Site, associated Brillium web sites or Brillium, except as expressly provided. In addition, Customer may not use the products or services provided through or in connection with the Brillium Web Site to:
- defame, abuse, harass, threaten or otherwise violate the legal rights of others;
- conduct or manipulate illegal, unauthorized, or unsolicited assessments, certifications, exams, quizzes, tests, surveys, or any other evaluation;
- 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; (iii) software or other material that contains viruses, corrupted files, or that may or are intended to damage the operation of another’s computer, or written to defeat the security measures of any computer, system, or programs;
- •harvest or otherwise collect information about third parties, including e-mail addresses, without the expressed consent of such third parties;
- restrict or inhibit any other Persons from using and enjoying its rights in, interfering with or disrupting the Service Web Site server or servers or network connected to the Service Web Site;
- violate any applicable government laws or regulations; or
- violate any third party rights in any manner.
12.4 Access Restriction. Brillium reserves the right to disable or restrict any access to its systems and the Brillium Web Site at any time in order to protect the integrity of its systems, data and customer’s 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, at its sole discretion, access to the Software and Services or any portion thereof without notice if it believes the customer experience, Software, Services, customer data or related systems is at risk. 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 Services resulting from any third party using a password, username, or account identifier issued to Customer.
13. THIRD PARTY SERVICES
13.1 External Sites. The Software and Services and Brillium website 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 Brillium Software and Services. 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 responsible for, and makes no representations as to such Other Services, their content or the manner in which they handle Customer data. Brillium is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer access or use of any such Other Services, or Customer reliance on the privacy practices or other policies of such Other Services.
13.2 Integration. The Software and Services may contain features that enable various Other Services (including but not limited to social media services like Facebook and Twitter) to be directly integrated into Customer’s Brillium Software and Services experience. To take advantage of these features, Customer will be required to register for or log into such Other Services on their respective websites. By enabling third party services within the Software and Services, Customer is allowing Brillium to pass Customer’s log-in or other authentication or identification information to these Other Services for this purpose.
14.1 Survival. The Parties agree that Article 11 (Indemnification), Article 9 (Ownership and Marks), Section 8.2 (Disclaimer of Other Warranties), Section 8.2 (Limitation of Damages), Section 14.5 (Export Control), Section 14.7 (Choice of Law and Forum Selection), Section 14.8 (Judicial Modification and Severability), 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.
14.2 Assignment and Delegation. Either party may assign or transfer their rights or delegate their duties under this Agreement, in whole or in part, without restriction, provided the assignee agrees to be fully bound by this Agreement. This Agreement supersedes prior versions of this Agreement, or any other discussions, agreements or understandings by or among the parties (other than written agreements expressly accepted and executed by both parties). 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.
14.3 Delay Caused by Other Party. If any action or failure to act by one Party (the “first Party”) causes the other Party (the “second Party”) delay in its performance under this Agreement, then the second Party shall receive an extension in its time to perform equal to the delay caused by the first Party. Delays caused by the second Party’s extension of time shall not be deemed breaches of this Agreement.
14.4 Force Majeure. Except for obligations of payment, neither Party shall be responsible for any failure to perform due to unforeseen circumstances or causes beyond its control (a “force majeure condition”). If a Party’s performance is affected by a force majeure condition then such Party shall be excused from performance to the extent required by the force majeure condition so long as such Party takes all reasonable steps to avoid or remove such causes of nonperformance and immediately continues performance whenever and to the extent such causes are removed.
14.5 Export Control. Customer acknowledges that the Software and any accompanying Documentation and/or technical information is subject to export control laws and regulations of the United States. Among other things, these laws and regulations prohibit or require a license for the export of certain types of commodities and technical data to specified countries. Customer shall comply, and shall cause its Representatives, Affiliates, and Agents to comply with all Unites States laws and regulations controlling the export and re-export of certain commodities and technical data, including without limitation all Export Administration Regulations of the United States Department of Commerce. Customer bears sole responsibility for any violation of such laws and regulations by it and its Representatives, Affiliates, and Agents. 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 United States export control laws or regulations.
14.6 Dispute Resolution. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. Prior to the initiation of litigation, the Parties shall first attempt to resolve disputes on an informal basis in accordance with this Article. The Party believing itself aggrieved (the “Invoking Party”) shall call for progressive management involvement in the dispute negotiation by written notice to the other Party. The Parties shall use their best efforts to arrange personal meetings and/or telephone conferences as needed at mutually convenient times, between negotiators for the Parties. The negotiators at the first management level shall have a period of thirty (30) business days in which to attempt to resolve the dispute, unless otherwise agreed to by the Parties. The allotted time for the first-level negotiation shall begin on the date of receipt of the Invoking Party’s notice. If a resolution is not achieved by first-level negotiations at the end of the allotted time, then the negotiations at the second management level shall begin immediately. The negotiators at the second management level shall have a period of thirty (30) days in which to attempt to resolve the dispute, unless otherwise agreed to by the Parties. If a resolution is not achieved by second-level negotiations at the end the allotted time, then either Party shall have the right to commence litigation proceedings. Any meetings held pursuant to this Section shall be held at Brillium’s facilities, through the use of video or telecommunications conferencing or other facilities as mutually agreed to by the Parties. Dispute resolution efforts shall be at each parties own expense.
14.7 Choice of Law and Forum Selection. The terms of this Agreement and all acts and transactions pursuant hereto shall be governed and construed by the laws of the State of Florida, without regard to its choice of law rules. Both Parties agree that any action or dispute arising out of or related to this Agreement shall be brought exclusively in a Florida state court located in St. Johns County. Customer hereby consents to the personal jurisdiction of such courts and hereby waives any right to remove any action to a United States District Court, and Customer further waives its right to seek to transfer or dismiss any claim on the grounds of forum non conveniens. Use of the Services is unauthorized in any jurisdiction that does not give effect to this Section.
14.8 Judicial Modification and Severability. If a court of competent jurisdiction or arbitrator holds any provision of this Agreement to be unenforceable, then such provision shall be amended and modified so as to be enforceable, or if such provision cannot be so amended or modified then said unenforceable provision alone shall be deemed omitted and all other portions of this Agreement shall remain valid and enforceable. Without limitation to the preceding, the Parties intend that this Agreement is valid and enforced as written.
14.9 No Implied Waivers. The failure of a Party to enforce any rights under this Agreement shall not constitute a waiver of such rights in the future. All waivers must be stated in unequivocal terms in writing and signed by the waiving party.
14.10 Integration; Modification by Parties. This Agreement constitutes the entire agreement between the Parties, and any prior understanding or representation of any kind preceding this Agreement shall not be binding upon either Party. Any modifications of this Agreement or additional obligations assumed by either Party in connection with this Agreement shall be binding only if in writing and signed by both Parties.
14.11 Relationship of Parties. Both Parties agree that they are independent entities. Nothing in this Agreement shall be construed to create a partnership, joint venture, or similar relationship between the Parties. Each Party is responsible for the supervision, management and direction of its own Representatives. Each Party is responsible for the payment of compensation to its Representatives and for any injury to them occurring in the course of their employment, and neither Party shall be responsible for the supervision, management, and direction of the Representatives of the other Party.
14.12 Captions. The captions set forth in this Agreement at the beginning of the various Articles and Section are for convenience of reference only and shall not be deemed to define or limit the provisions hereof to affect in any way their construction and application.
14.13 Further Assurances. Brillium and Customer agree that each will, from and after the Effective Date of this Agreement, execute and deliver such other documents (including writings certifying Customer’s acceptance, if any, of the Software or Services) and take such other actions as may reasonably be requested to effect the transactions contemplated hereunder.
14.14 Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, Brillium reserves all rights, title and interest in and to the Software and Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
14.5 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
15. FEDERAL GOVERNMENT END USE PROVISIONS
If Customer is a U.S. federal government end user, this Service is a “Commercial Item” as that term is defined 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, this Service is licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.
Terms of Service Agreement Version: 15.12 (03/19/2019)