BRIGHTSPOT TERMS OF SERVICE

These Brightspot Terms of Service set forth legal terms and conditions applicable to a Customer’s access and use of our Brightspot Platform and Brightspot’s related Services. All access to and use of the Services by a Customer is subject to these Terms of Service. Capitalized terms used in these Terms of Service are set forth in Section 1 below or as otherwise defined in the text of these Terms of Service.

THE INDIVIDUAL ACCEPTING THESE TERMS OF SERVICE ON BEHALF OF CUSTOMER REPRESENTS AND EXPRESSLY AGREES THAT HE OR SHE IS AUTHORIZED ON BEHALF OF CUSTOMER, AS AN OFFICER, EXECUTIVE OR OTHER AUTHORIZED AGENT, TO AGREE TO AND ACCEPT THESE TERMS OF SERVICE AND SUCH INDIVIDUAL FURTHER REPRESENTS THAT HE OR SHE HAS AUTHORITY TO BIND CUSTOMER TO THE TERMS HEREOF.

BY REGISTERING FOR, SUBSCRIBING TO, OR ACCESSING OR USING, ANY OF THE SERVICES OR (INCLUDING BY CLICKING “I AGREE” TO THESE TERMS WHEN PRESENTED DURING THE REGISTRATION PROCESS), CUSTOMER ACKNOWLEDGES THAT IT HAS READ ALL OF THESE TERMS AND CONDITIONS AND AGREES TO COMPLY WITH THEM INCLUDING THE BRIGHTSPOT DATA PRIVACY ADDENDUM, WHICH IS INCORPORATED HEREIN BY REFERENCE. IF CUSTOMER DOES NOT AGREE WITH THESE TERMS OF SERVICE, CUSTOMER MAY NOT ACCESS OR OTHERWISE USE ANY SERVICES AND MUST DISCONTINUE ALL USE THEREOF. CUSTOMER’S ACCESS TO AND USE OF THE ANY OF THE SERVICES INDICATES CUSTOMER’S FULL UNDERSTANDING AND ACCEPTANCE OF THESE TERMS OF SERVICE.

THESE TERMS OF SERVICE CONTAIN AN ARBITRATION PROVISION, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE CUSTOMER TO SUBMIT CLAIMS CUSTOMER HAS AGAINST BRIGHTSPOT TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION PROVISION, (1) CUSTOMER WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST BRIGHTSPOT ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) CUSTOMER WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. THESE TERMS OF SERVICE ALSO CONTAIN OTHER LIMITATIONS ON CUSTOMER, INCLUDING LIMITATIONS ON BRIGHTSPOT’S LIABILITY AND DISCLAIMERS OF WARRANTY, AND CUSTOMER SHOULD READ THESE TERMS CAREFULLY.

1. Definitions.  For purposes of these Terms of Service, capitalized terms used herein shall have the meanings set forth in this Section or the meanings otherwise given to them in the main body of these Terms of Service:

“Affiliate” means Brightspot’s owners, officers, directors, affiliated companies, suppliers, partners, sponsors, and agents and representatives, and includes (without limitation) all parties involved in creating, producing, and/or delivering the any of the Services.

“Applicable Laws” means any applicable law, rule, regulation or other government requirement.

“Authorized Experience(s)” are the infrastructure serving as the production environments for the Customer web and/or intranet experiences set forth in an Order or as otherwise agreed to by Brightspot in writing.

“Authorized Users” means Customer’s employees and agents authorized to access the Services pursuant to the terms and provisions of these Terms of Service.

“Brightspot” “Company” “we” “us” “our” and other similar terms means Perfect Sense, Inc. d/b/a/ Brightspot.

“Brightspot Platform” or the “Platform” means (i) Brightspot's proprietary publishing and content management platform known as “Brightspot” that is made available on a platform-as-a-service basis, (ii) any related Sites offered by Brightspot for a Customer, and (iii) any related data, APIs, software, technology, programs and/or software and platform specific related services or functions that Brightspot may provide to Customer from time-to-time pursuant to the terms of these Terms of Service. For purposes of these Terms of Service, the customized and/or standard corporate version of the Brightspot Platform is not covered by these Terms of Service.

“Customer” means the entity, company, organization or party that is accepting and agreeing to, or is otherwise bound by, these Terms of Service as set forth herein.

“Customer Materials” means any data, information, results, reports, communications, content, documents, instructions, files, software or other materials that Customer or its Authorized Users directly or indirectly upload, provide, input, transmit to Brightspot or any of the Services.

“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Brightspot for any of the Services.

“Evaluation Term” means thirty (30) days or such period of time as may be offered by Brightspot in its sole and absolute discretion during which period a Customer may evaluate any Services.

“Feedback” means any feedback from Customer or its employees or Authorized Users related to their respective access to and use of the Services, including without limitation, feedback on features or functionality, usability, specifications, architectural diagrams, APIs and related information, software or hardware compatibility, interoperability, performance, bug reports, test results and documentation requirements, and may also include suggestions or ideas for improvements or enhancements to the Services.

“Order” means (i) any order form or other written agreement that is signed by the Parties or electronically agreed to by the Parties and which sets forth the particular Services to be provided to Customer and related terms; and/or (ii) an online order page or similar website page on a Brightspot website or other related site or page that allows Customer to select any of the Services (e.g. selecting a specific offering level or plan offered by Brightspot, selecting a tier or number of users, etc.).

“Party” means Brightspot or Customer individually and “Parties” means Brightspot and Customer collectively.

“Permitted Use” means use of the Brightspot Platform solely for Customer’s internal business purposes.

“Personal Information” means data that can be used to identify, contact, or locate a natural person, which may include but is not limited to, name, address, telephone number, e-mail address, online contact information (including, without limitation, an instant messaging user identifier or a screen name that reveals an individual’s e-mail address), account numbers (financial and otherwise), government-issued identifier (including, but not limited to, social security number) and any other data considered personal information or personal data under Applicable Laws (including, in some jurisdictions, IP addresses, and where applicable cookie information and mobile identifiers).

“Services” means, collectively, (a) access to and use of the Brightspot Platform as described in these Terms of Service; (b) any additional services or offerings that may be provided by Brightspot related to the Brightspot Platform (whether pursuant to an Order or otherwise), including without limitation any Premium Features agreed upon by the Parties in an Order; and (c) any support services and related technologies, software, APIs and/or Documentation that may be provided by Brightspot in its sole discretion for facilitating, maintaining and monitoring Customer’s use of the foregoing.

“Site” means Brightspot.com and any Customer specific website(s) made available by Brightspot for purposes of facilitating Customer’s and the Authorized Users’ access to and use of the Platform (e.g. a specific subdomain provisioned for a Customer-specific implementation of the Platform).

“Terms of Service” or “Agreement” means these Brightspot Terms of Service and any related policies or agreements incorporated by reference.

2. Organizational Use. The individual entering into these Terms of Service on behalf of Customer hereby represents that he or she has the authority to bind Customer, its affiliates and all Authorized Users who access any of the Services through Customer’s account to these Terms of Service.  ANY INDIVIDUAL WHO DOES NOT HAVE SUCH AUTHORITY, OR WHO DOES NOT AGREE WITH THESE TERMS OF SERVICE, MUST NOT ACCEPT THESE TERMS OF SERVICE AND MAY NOT ACCESS NOR USE ANY OF THE SERVICES.  

3. Services.  

• a. Evaluation.  Brightspot may offer you a free evaluation of the Services (or portions thereof) as set forth in, and for the Evaluation Term set forth in, an Order (e.g. on the pricing page where you sign up).  During the Evaluation Term, and subject to the terms and provisions of these Terms of Service, Brightspot hereby grants to Customer a non-exclusive, non-transferable right to permit Authorized Users to access and use the Platform on a platform-as-a-service basis solely for the Permitted Use for evaluation purposes only and subject to any limitations or requirements of Brightspot related to evaluations.  Brightspot reserves the right to limit the Services or provide only certain functionality or support with respect to the Services during an Evaluation Term.  
• b. Brightspot Platform Right to Access and Use.  During the Subscription Term (as defined below) and subject to the terms and provisions of these Terms of Service, Brightspot hereby grants to Customer a non-exclusive, non-transferable right to permit Authorized Users to access and use the Platform on a platform-as-a-service basis solely for the Permitted Use (subject to any particular access plan Customer has selected and subject to any feature or other use restrictions based on the plan or Premium Features (if any) Customer is paying for, in each case as agreed in an Order).  Brightspot provides the Platform and Brightspot’s other Services subject to Customer’s and each of its Authorized User’s compliance with all the terms, conditions, policies and notices contained or referenced in these Terms of Service, as well as any other written or electronic Order or other agreement between Brightspot and Customer.  In addition, when using the Services, Customer and its Authorized Users shall be subject to any posted guidelines, rules or documentation (if any) applicable to such services or materials that may contain terms and conditions in addition to those in these Terms of Service (e.g. an Authorized Use Policy). All such guidelines, rules or documentation are hereby incorporated by reference into these Terms of Service.  
• c. Authorized Users.  Authorized Users may access and use applicable portions of the Services hereunder solely for purpose of exercising Customer’s rights and performing Customer’s obligations hereunder.  Customer shall be fully liable and responsible for each Authorized User’s compliance with the terms and provisions of these Terms of Service and any of their acts or omissions.  Authorized Users shall be granted access to the Services for the Permitted Use through issue of user names and passwords provided that such issuance shall only be for up to a reasonable number of Authorized Users as determined by Brightspot unless otherwise agreed to by the Parties.  Customer shall be responsible for verifying the status of Authorized Users, updating such lists on a regular basis and providing any such lists to Brightspot upon request.  Brightspot shall have the right to monitor use of the Services and user credentials.  Customer and each Authorized User are responsible for maintaining the confidentiality of usernames and passwords. Customer agrees to immediately notify Brightspot via an email to security@brightspot.com of any unauthorized use of the Services of which Customer becomes aware. Each Authorized User accessing the Services shall be required to have a separate Authorized User account and sharing of accounts or passwords is not permitted.  
• d. Effective Date; Right to Modify; Binding Effect of Continued Use.  These Terms of Service are effective as of the date that Customer first uses any of the Services, clicks “I Agree” when these terms are first presented in connection with the Service registration process, or as otherwise specified in an Order (the “Effective Date”).   Brightspot reserves the right to change these Terms of Service from time to time without notice to Brightspot or its Authorized Users and any modifications or changes to these Terms of Service shall be effective upon such modification or amendment being posted to the applicable Services or Sites or otherwise communicated to Customer.  Customer acknowledges and agrees that it is Customer’s and its Authorized Users’ responsibility to review the Platform and these Terms of Service periodically and to be aware of any modifications. Customer’s continued use of the Services after such modifications will constitute Customer’s acknowledgement of the modified Terms of Service and agreement to abide and be bound by the modified Terms of Service.
• e. Scope and Other Terms and Policies.  Please note that Brightspot provides a variety of software solutions and service offerings to its clients, including a customized version of the Platform made available to customers.  These Terms of Service apply only to the Brightspot Platform and related Services as described herein. Brightspot’s other solutions and service offerings (for instance, the customized –i.e. version of the Platform) are made available pursuant to separate terms and conditions and are not covered or addressed in these Terms of Service.  Please visit www.brightspot.com to learn more about Brightspot’s other solutions and service offerings. 
• f. Data and Information from Third Party Sites.  Authorized Users may be required or allowed to link to a Google account or other third party account or site in order to provide, submit or upload Customer Materials or other information to the Services (e.g. Google Accounts, Google APIs, Facebook, etc.).  Customer expressly acknowledges and agrees and grants Brightspot all necessary rights and licenses to access the Customer Materials and other information that may be hosted on third party sites, integrate into third party APIs to access and transmit Customer Materials and other information to the Services, store such Customer Materials and information and process and use such Customer Materials and other information via the Services.  Customer and its Authorized Users are solely responsible for complying with all third party agreements, terms of service or other applicable legal terms and ensuring that they have the right to transmit Customer Materials to the Services and permit the Services to process the Customer Materials.  

4. Support and SLAs.  During the Term and subject to the terms and provisions of these Terms of Service, Brightspot shall use commercially reasonable efforts to provide Customer with the following support services for the Services: (i) internet-based support related to use of the Services via a web support portal provided by Brightspot; (ii) technical support for any material errors or bugs in the Services comprising of (1) workarounds or (2) software patches and fixes for such errors or bugs, once Brightspot has determined that such error or bug is a fault in the Services; and (iii) any other support service offered to Customer by Brightspot from time to time which Brightspot may, at its sole discretion, designate as a support service.  Support services shall not include any services related to any errors, bugs or issues resulting from: (a) any alteration or modification to the Services made by any person other than Brightspot; (b) minor defects in the Services which do not materially affect or impair the use of the Services; (c) any incorrect or improper use of the Services; (d) failure to implement Brightspot recommendations in respect of any solutions or workarounds to errors previously advised by Brightspot; (e) errors or problems caused, at least in part, by Customer Materials or any Authorized User inputs; and (f) the use of the Services for any purpose for which it was not designed (collectively “Exclusions”). Additional fees may apply to any services that Brightspot elects to provide related to the foregoing Exclusions.

Brightspot’s service level agreement for the applicable Services shall be as set forth in the SLA Policy Page attached as an Exhibit to this Agreement.

5. Customer Agreements.  

• a. Requirements and Restrictions.  Except as expressly set forth herein, Customer and its Authorized Users shall not: (a) copy the Services; (b) loan, rent, or lease the Services or otherwise transfer, assign the right to use or commercialize any of the Services, including but not limited to posting or otherwise making the Services available on the Internet including as a service bureau or application service provider; (c) itself, nor permit or encourage others to, reverse engineer, decompile, decipher, disassemble, translate or otherwise decrypt or discover the source code of all or any portion of the Services; (d) modify, adapt or write or develop any derivative works based on the Services or use the Services in any manner except as expressly provided in these Terms of Service; (e) interfere with or disrupt the integrity or the operation of the Services; (f) copy any features, functions, screens, interfaces or graphics of the Services; (g) violate any Applicable Laws, third party rights or Brightspot policies while using or receiving the Services; (h) use the Services or submit any Brightspot forms if temporarily or indefinitely suspended from using the Services by Brightspot; (i) manipulate any of the Services, email responses or interfere with any other Brightspot client’s or user’s use of the Services; (j) provide false, inaccurate, misleading, defamatory, or libelous information or content; (k) spoof or create any emails, content, correspondence or other information from Brightspot, including fake or fraudulent acceptances or offers; (l) create any competitive service or feature (or otherwise establish a competitive business) based on, in whole or in part, any of Brightspot’s Services or business ideas, (m) distribute viruses or any other technologies that may harm Brightspot or the interests or property of Brightspot’s other clients and users; (n) harvest or otherwise collect information about Brightspot’s clients and users, including email addresses, without their consent; (o)  use the Services to gain unauthorized access to Brightspot’s or any third parties network(s) or server(s); (p) interfere with any of Brightspot’s other client’s and user’s use and enjoyment of the  Services; (q) violate the intellectual property rights, including but not limited to, copyrights, trademark rights, trade secrets or patents of any person or entity; and/or (r) transmit or store in or through the Services (or any portion thereof) any viruses, malware or other harmful code, any infringing, libelous, or otherwise unlawful or tortious material, or material in violation of third party privacy rights or in a manner that violates Applicable Law.  Under no circumstances shall Customer allow other commercial entities (including, without limitation, Customer’s affiliates, customers, clients or business partners) to access or use the Services without Brightspot’s prior written consent. Customer covenants and agrees that it shall: (i) perform those tasks and assume those responsibilities required of it by Brightspot to provide the Services, including, without limitation, providing Authorized Users with equipment and/or Internet access to access and use the Services; (ii) comply with all Applicable Laws when using the Services; and (iii) ensure that only Authorized Users use the Services and only as intended and in accordance with the terms of these Terms of Service and any provided documentation.   This description of prohibited conduct is not intended to be exhaustive, and Brightspot has sole discretion to determine what constitutes prohibited conduct for Customer and its Authorized Users.  Anyone who violates Brightspot’s system or network security may incur criminal or civil liability. 
• b. Modifications.  Customer acknowledges and agrees that, from time-to-time, portions of, or functionality included in, the Services may be added to, modified, or deleted by Brightspot and that the Services may change over time.  Brightspot may (but is not required to) expand or enhance the Services by providing additional features in the general course of Brightspot’s standard development model and offering road map (“Premium Features”). Customer acknowledges and agrees that certain Premium Features may be priced separately in Brightspot’s sole discretion and Customer may be required to pay additional amounts for such Premium Features (in addition to Fees previously agreed upon by the Parties).  Customer understands that certain functionality and portions of the Services may only be available to certain customers and that not all functionality and portions of the Services may be available to all customers and all users. Any Premium Features made available by Brightspot shall be considered Services and shall be subject to these Terms of Service.
• c. Third Party Technology.  Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, Internet access, desktop or laptop computers or other compatible devices, web browsers, browser extensions, etc. (collectively, “Third Party Technology”). Customer shall also be responsible for maintaining the security of the Third Party Technology, Customer accounts, passwords (including but not limited to administrative and user passwords) and files, and for all uses of any of the Customer accounts or the Third Party Technology with or without Customer’s knowledge or consent.  In order for Customer to make full use of the Services, it may be necessary for Customer to use particular Third Party Technology and Customer shall be responsible for procuring and maintaining such Third Party Technology and complying with any requirements related thereto.  If Customer is unable to access all or part of the Services because it does not have access to any necessary Third Party Technology, this shall not constitute a breach of these Terms of Service by Brightspot and Brightspot shall not be liable for any loss, damage or expense which may result from Customer’s inability to access the Services.  
• d. Customer Offerings.  Brightspot assumes no responsibility for Customer’s products, services, solutions, offerings, operations and other business activities (the “Offerings”), including, without limitation, that use of the Service by Customer and its Authorized Users shall comply with all applicable laws.  Customer is solely responsibility for providing and delivering the Offerings to its clients, customers and user base, and resolving all disputes with such clients, customers and user base. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT BRIGHTSPOT SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY OF CUSTOMER’S OFFERINGS AND ANY CLAIMS, ISSUES, MATTERS OR OTHER INTERACTIONS WITH ANY OF CUSTOMER’S CLIENTS, CUSTOMERS OR USE BASE.
• e. Customer Responsibilities.  Customer agrees that, at all times during the Term, it shall: (i) perform those tasks and assume those responsibilities required by Brightspot related to the Services; (ii) upon Brightspot’s request, make available to Brightspot Customer personnel familiar with Customer’s business requirements related to the Services; (ii) reasonably cooperate with Brightspot regarding the Services: (iv) provide true, accurate, current and complete information about Customer as prompted by Brightspot’s forms and in any other related document or agreement; (v) maintain and update Customer’s information to keep it true, accurate, current, and complete (collectively, the “Customer Responsibilities”).  Each Order shall also contain any assumptions of Customer for providing the Services and/or additional responsibilities required of Customer for Brightspot’s performance of the Services.  Customer understands that Brightspot’s performance is dependent on Customer’s timely and effective satisfaction of Customer Responsibilities hereunder and timely decisions and approvals by Customer. Customer acknowledges that, if any information provided by Customer is untrue, inaccurate, not current, or incomplete, Brightspot reserves the right to terminate Customer’s use of the Services and withdraw any offer or agreement.  Customer agrees to keep Customer’s account information, including login and password information, secure and not to share it with any third party.  Customer is solely responsible for the maintaining the security of Customer’s account.
• f. Age for Use of the Services. All Authorized Users must be 18 years of age or older to visit or use any of the Services in any manner. By, using or receiving any of the Services or otherwise accepting these Terms of Service, Customer represents and warrants to Brightspot that all of its Authorized Users are at least 18 years of age or older, and that each such Authorized User has the right, authority and capacity to agree to and abide by these Terms of Service.  Customer also represents and warrants to Brightspot that Customer will cause all of its Authorized Users to use the Services in a manner consistent with any and all applicable laws and regulations.   
• g. Customer Materials Restrictions.  Customer is and shall be solely responsible for all Customer Materials that Customer or any of its Authorized Users submit, provide or upload to the Services, including the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all such Customer Materials.   Brightspot assumes no responsibility for any Customer Materials and Brightspot has no obligation to and is not required to review or approve any Customer Materials.  Without limiting the foregoing, Customer shall not, and shall not permit any Authorized User to, submit, provide or upload any Customer Materials to the Services that: (a) include offensive, harmful, fraudulent, false and/or abusive language or content, including without limitation: obscenities, harassment, vulgarities, sexually explicit language and hate speech (e.g., racist/discriminatory speech.); (b) are determined by Brightspot, in its sole discretion, to be illegal, or to violate any Applicable Laws or the rights of any other person or entity (including intellectual property rights or privacy rights); or (c) that are encrypted or that contain viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept or appropriate any system, data or personal information.  Customer acknowledges and agrees that if Customer or any of its Authorized Users submits, provides or uploads any Customer Materials to the Services that Brightspot in its sole discretion believes violate the foregoing or any other applicable Brightspot guidelines or policies, or for which Brightspot has received a third party complaint that such Customer Materials may violate any of the foregoing or any other applicable Brightspot guidelines or policies, then Brightspot may: (i) remove without notice all or a portion of the applicable Customer Materials, and/or (ii) suspend Customer’s or a particular Authorized User’s continued access to or use of the Services pending removal of such Customer Materials or permanently terminate Customer’s or a particular Authorized User’s continued access to and use of the Services.  Customer hereby grants, and represents and warrants that the Customer and each Authorized User has the right to grant, to Brightspot an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify, and distribute Customer Materials within the Platform and in connection with Brightspot’s other Services.  
• h. Customer Representations. Customer represents and warrants: (a) these Terms of Service: (i) have been authorized by all necessary corporate action, (ii) do not violate the terms of any Applicable Law or court order to which Customer is subject or the terms of any material agreement to which Customer or any of its assets may be subject, and (iii) will not breach any contractual right of, or obligation to, any third party and are not subject to the consent or approval of any third party; and (b) these Terms of Service are the valid and binding obligation of Customer, enforceable against Customer in accordance with its terms.

6. Brightspot Rights.  

• a. License.  Customer acknowledges and agrees and hereby grants Brightspot any and all rights and licenses to: (i) access, use, process, display and manipulate any Customer Materials and any Brightspot equipment or Third Party Technology as necessary to provide, improve, analyze and monitor the Services; and (ii) display or use, in advertising or otherwise, Customer’s name, logo and trademarks, to provide the Services and to indicate that Customer is or was a customer of Brightspot.   
• b. Remote Monitoring. The Brightspot shall have the right and ability to monitor Customer’s and each Authorized User’s use of the Services remotely and/or electronically to verify their respective compliance with the terms and provisions of these Terms of Service.  
• c. Telemetry and Remote Collection.  Customer acknowledges and agrees that certain Services may transmit to Brightspot (and Brightspot may collect and use) certain data and information related to the Services, including as related to its operation and use. 
• d. Remote Disablement.  In the event that Customer or an Authorized User breaches any of the terms or provisions of these Terms of Service, Customer acknowledges and agrees that Brightspot may remotely disable or terminate Customer’s and/or the applicable Authorized User’s use of the Services.  

7. Intellectual Property Matters; Customer Materials.  

• a. Brightspot IP.  Customer agrees that all of the Services and all Feedback are owned by Brightspot or its licensors, and are protected by U.S. and international intellectual property laws, and that Brightspot shall solely own and retain all right, title and interest to, including all intellectual property rights in, the Services and Feedback.  For the avoidance of doubt, the foregoing includes and applies to each specific subdomain provisioned for a Customer-specific implementation of the Services (all of which are and shall be owned by Brightspot and/or its licensors excluding the Customer Materials included therein). Additionally Brightspot and/or its Affiliates shall own all right, title and interest, including all intellectual property rights, in and to all inventions, improvements, developments, discoveries, marks, logos, know-how, trade secrets, notes, records, reports, drawings, designs, data, computer programs and all other works of authorship conceived, made, discovered or developed by or on behalf of Brightspot in performing the Services hereunder or provided or delivered to Customer hereunder (collectively, the “Inventions”).  Customer agrees to assign and hereby does fully and irrevocably assign to Brightspot all of its right, title and interest in and to the Feedback, including all intellectual property rights therein.  The Services and all Feedback and Inventions shall be deemed the Confidential Information of Brightspot. Neither Brightspot nor Brightspot’s Affiliates warrant or represent that Customer’s and its Authorized Users’ use of any Inventions or any Services will not and does not infringe the rights of third parties. 
• b. Customer IP.  Brightspot agrees that the Customer Materials are owned by Customer or its customers and clients, and is protected by U.S. and international intellectual property laws, and that Customer or its clients or customers shall solely own and retain all right, title and interest to, including all intellectual property rights in, the Customer Materials, subject to Brightspot’s license and use rights set forth in these Terms of Service.  
• c. Customer Materials.  Customer is solely responsible for all Customer Materials submitted or uploaded to or shared with the Services and any activity that occurs under Customer’s account.  Without limiting the foregoing, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all Customer Materials, and Brightspot assumes no responsibility for the deletion, correction, destruction, loss, infringement or failure of the Services to store any Customer Materials.  Brightspot reserves the right to establish a maximum amount of memory or other computer storage and a maximum amount of Customer Materials that Customer (or its Authorized Users) may store, post, collect or transmit on or through the Services.  Brightspot shall not be required to maintain a backup or copy of any Customer Materials and Brightspot shall have no liability for any loss of Customer Materials, whether caused by Brightspot, Customer, any third party service Brightspot or any third party.  Customer shall comply with local, national and international laws and regulations applicable to the transmission or storage of data through the Services.  Customer shall be solely responsible for its actions while using the Services and the contents of its transmissions through the Services.  Customer is solely responsible for ensuring that it (and each Authorized User) has all rights necessary to provide the Customer Materials to Brightspot and the Services.  Brightspot shall not be responsible for any data, information or material that Customer authorizes Brightspot to retrieve or that the Customer submits to the Services in the course of using the Services.  Brightspot does not pre-screen, verify, confirm or otherwise authorize any Customer Materials. However, Brightspot and its designee(s) have the right (but not the obligation) in their sole discretion to refuse or remove any Customer Materials that is processed by or provided to the Services.  Brightspot may, but has no obligation to, remove content and accounts containing content that Brightspot determines in its sole discretion are illegal, threatening or otherwise objectionable or violates any party's intellectual property or these Terms of Service.   Brightspot does not endorse and is not responsible or liable for any Customer Materials posted by Customer or any Authorized User.  The statements, information, advice and opinions contained in any Customer Materials solely reflect the view of the Customer or Authorized User that submitted such Customer Materials and do not reflect the opinion of Brightspot or any of its Affiliates.  Customer acknowledges and agrees that no transmission or hosting of data is 100% secure and there remains a possibility that Customer Materials may be subject to unauthorized access by hacking, malware, systems breach or other unauthorized method and Brightspot shall have no liability relating to any such breach or access.  
• d. Reservation of Rights.  Customer acknowledges and agrees that the Services are provided under license, and not sold, to Customer or its Authorized Users.  Customer and its Authorized Users do not acquire any ownership interest in any of the Services under these Terms of Service, or any other rights thereto other than to use the Services in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms of Service.  Brightspot and its licensors and service providers reserve and shall respectively retain their entire right, title, and interest in and to the Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to Customer in these Terms of Service.
• e. Third Party Materials.  Portions of the Services may link Brightspot and Authorized Users to other sites on the Internet or otherwise include information, documents, software, materials, content and/or services provided or submitted by third parties (“Third Party Materials”) or references to such Third Party Materials. These Third Party Materials may contain information or material that some people may find inappropriate or offensive. These Third Party Materials (and the third parties responsible therefor) are not under Brightspot’s control, and Customer acknowledges that Brightspot is not responsible for the accuracy, completeness, appropriateness, validity, copyright compliance, legality, decency, or any other aspect of such Third Party Materials, nor is Brightspot responsible for errors or omissions in any references to other parties or their products and services. The inclusion of Third Party Materials, including any reference or link thereto, is provided merely as a convenience and does not imply endorsement of, or association with, the Services, Brightspot or any Brightspot Affiliates, or any warranty of any kind, either express or implied.  Customer accesses and uses all such Third Party Materials entirely at Customer’s own risk and subject to such third parties’ terms and conditions.  
• f. Suspected Copyright Violations. Brightspot respects the intellectual property of others, and Brightspot asks Customer to do the same. If Customer believes its or an Authorized User’s copyright, trademark or other property rights have been infringed by the Services, Customer should send notification to Brightspot, via the contact information described herein, immediately. To be effective, the notification must include: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) information reasonably sufficient to permit Brightspot to contact the complaining party, such as address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted; (iii) identification of the material that is claimed to be infringing or to be subject to infringing activity and that is to be removed and information reasonably sufficient to permit Brightspot to locate the materials; (iv) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, agent, or the law; and (v) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringing.

8. Privacy, Security and & Network Limitations.

• a. Authorized User Personal Information. Brightspot collects Personal Information only as necessary to provide the Services and permit Customer and Customer’s Authorized Users to access and use the Services and as otherwise set forth in our Data Processing Addendum. For example, Authorized Users may be required to provide certain basic Personal Information like their email address, name, and title in order to register on or access the Services or to receive communications from Brightspot regarding the Services. In addition, Brightspot may collect certain billing information depending on Customer’s preferences and circumstances. Customer and its Authorized Users shall only provide the minimum amount of Personal Information necessary to use or access the Services and Customer hereby acknowledges, agrees and covenants to only provide, and to only allow its Authorized Users to provide, Personal Information to Brightspot if Customer or the applicable Authorized User has all rights and licenses to do so (and Customer and the Authorized User has complied with all Applicable Law). Customer hereby agrees to be liable and responsible for any claims or actions related to failure to obtain such rights. The Parties acknowledge and agree that Brightspot’s Data Processing Addendum shall apply to all Personal Information collected by Brightspot.
• b. No Third Party Personal Information. The Services are not designed to store or process any Personal Information of any individual except for Authorized Users. If you plan to use the Services to store or process any Personal Information of any other individuals (e.g. site visitors, employee databases, contact lists, etc.), you may not use the Services and you must contact us in order to use one of our other services.
• c. Security. The protection of Customer Materials and Personal Information is a top priority for Brightspot and Brightspot will maintain administrative, physical, and technical safeguards at a level not materially less protective than generally prevailing industry standards. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Materials and Personal Information by our personnel. Before sharing Customer Materials or Personal Information with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Materials and Personal Information and preventing unauthorized access.
• d. Data Processing Addendum. The information Brightspot obtains through the Customer’s use of the Services, including all Personal Information, is subject to Brightspot’s Data Processing Addendum which is specifically incorporated by reference into these Terms of Service.
• e. Network Limitations. Customer understands and agrees that temporary interruptions of the Services may occur as normal events. Brightspot may use third party providers to store, manage, and authenticate accounts and content, and to provide the necessary hardware, software, networking, storage, and related technology required to run the Services. Brightspot is not responsible for possible issues caused by third party faults or discontinued services. Brightspot does not guarantee or warrant that any Customer Materials that an Authorized User saves, stores or accesses through the Services will not be subject to inadvertent damage, corruption, or loss. Customer is encouraged to back up the files that it and its Authorized Users store or access via the Services. While Brightspot takes data security and privacy seriously, Customer understands and agrees that the technical processing and transmission of the Services, including Customer Materials, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Additionally, Customer further understands and agrees that Brightspot has no control over third party networks that Customer or other Authorized Users may access or attempt to access in the course of the use of the Services, and therefore, delays and disruption of network transmissions and inaccuracies in results may be completely beyond Brightspot’s control and Brightspot assumes no responsibility for such delays, disruptions or inaccuracies. Without limiting the foregoing, Brightspot expressly disclaims responsibility for any lost revenues, lost profits, lost sales or billing errors, glitches or delays experienced by Customer or an Authorized User to the extent caused by Service outages or network or infrastructure interruptions. Customer understands and agrees that the Services are provided “AS IS” and that Brightspot assumes no responsibility for the timeliness, deletion, misdelivery or failure to store any Customer Materials, or any other communications or personalization settings. Without limiting any of the foregoing, Customer acknowledges and agrees that Customer (and not Brightspot) bears sole responsibility for adequate security, protection and backup of Customer Materials and Personal Information when in Customer’s or its representatives’ or agents’ possession or control, and Brightspot is not responsible for what Customer’s Authorized Users, any Third Party Technology or any network or infrastructure providers do with Customer Materials or Personal Information.

9. Fees.

• a. Free Evaluation.  During the Evaluation Term, there shall be no fees for use of the Services.
• b. Services Fees and Payment Terms. After an Evaluation Term, the Services are a fee-based subscription service.  Accordingly, in order to access and use the Services (including applicable Premium Features), Customer must and shall pay all applicable subscription, access and service fees for the Services as set forth in or on an Order (the “Fees”).  For example, the Fees may be set forth in a written Order entered into by the Parties or when you sign up for the Services or a certain tier or offering, the fees may be presented to you on the product pricing page which shall be considered the Order as described above.  All Fees are non-cancelable and non-refundable, except as otherwise provided for herein. Customer will pay all Fees in U.S. Dollars.  If an Order sets forth that increases in Fees may apply upon a renewal, such increase of Fees shall automatically apply as set forth in such Order.
• c. Payment Authorization; Invoices; Recurring Billing.  For certain Services (including the Platform as well as certain Premium Features selected by Customer), a valid credit card, bank account or other payment method may be required.   Brightspot will bill Customer in advance in accordance with Customer’s Order or any applicable pricing schedule set forth on Brightspot’s website, including (to the extent applicable) automatically charging Customer’s credit card on file for Services to be provided during the upcoming payment period. There will be no refunds or credits for partial months of paid Services or for any pre-paid Services (e.g. if you pay for a year of Services in advance and cease using the Services or request a termination, we do not have to refund you any of the pre-paid fees). All fees will be exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based on Brightspot’s income.  Customer shall pay for any taxes that might be applicable to Customer’s use of such paid Services. Customer agrees to be billed monthly, annually or at such other installments as set forth in an Order or as applicable to Brightspot’s standard Services, and hereby grants Brightspot the right to charge Customer’s credit card (or otherwise facilitate payment – e.g. ACH) with the payment information Customer has provided, including in advance and on a recurring basis.  Customer will reimburse Brightspot for any fees that Brightspot may be charged related to declined payments, and Customer will keep Brightspot informed of all changes to the Customer’s billing information.  All amounts invoiced hereunder are due and payable as specified in the applicable Order. Unpaid Fees that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by applicable law, whichever is lower, plus all reasonable expenses of collection. 
• d. Audit.  Brightspot shall have the right and authority to monitor Customer's use of the Services electronically to ensure compliance with the terms and provisions of these Terms of Service.  In addition, in the event that Brightspot has a reasonable belief that Customer is not in compliance with the terms or provisions of these Terms of Service, then Brightspot shall have the right to audit Customer's business, records and systems to ensure compliance with the terms and provisions of these Terms of Service.  Brightspot shall provide ten days’ notice to Customer and such audit shall not unreasonably interfere with Customer's operations.  In the event that a violation of these Terms of Service is found by Brightspot and such violation relates to an underpayment of fees, then, in addition to any other rights it may have, Brightspot shall invoice and Customer shall pay all underpaid fees plus interest at the rate of 1% per month plus the fees of such audit.  

10. Term; Termination.

• a. Evaluation Term.  Brightspot may, in its sole discretion and on a customer-by-customer basis, offer Customer an Evaluation Term to evaluate the Services.  All use of the Services during an Evaluation Term shall be subject to the terms of this Agreement.  Upon the end of the Evaluation Term, if Customer executes a written Order with a stated “Commencement Date”, these Terms of Service shall continue as set forth in Section 10.b.  In the event that a written Order is not entered into by the Parties, Customer’s use of the Services shall automatically terminate at the end of the Evaluation Term unless otherwise agreed to by Brightspot.
• b. Term.  Unless a different term is specified in an Order, these Terms of Service shall continue with respect to the particular Services being provided via the Order for a period of time equal to one year from the Commencement Date set forth in the Order (the “Initial Subscription Term”). Following the Initial Subscription Term, these Terms of Service shall automatically renew for successive one (1) year terms with respect to the applicable Services (each, a “Renewal Subscription Term”, and together with the Initial Subscription Term, the “Subscription Term”), unless either Party provides the other Party with notice of its intention not to renew at least thirty (30) days’ prior to the end of the then-current term. The Fees specified in the applicable Order shall only apply during the Subscription Term. The Evaluation Term (if any) and the Subscription Term are together referred to herein as the “Term”.  
• c. Termination.  During the Evaluation Term (if any), either Party may terminate these Terms of Service at any time for any or no reason upon written notice (email being sufficient) to the other Party. Customer agrees that Brightspot may at any time during the Term, and at Brightspot’s sole discretion, terminate Customer’s (or any Authorized User’s) access to any portion or all of the Services without prior notice to Customer for violating these Terms of Service, including, without limitation, breach of any specific provision of these Terms of Service.  Any suspected fraudulent, abusive or illegal activity may be grounds for terminating Customer’s relationship with Brightspot and may be referred to appropriate law enforcement authorities. In addition, Customer acknowledges that Brightspot will cooperate fully with investigations of violations of systems or network security at other sites.  In addition to the foregoing, either Party shall have the right to terminate these Terms of Service if the other Party terminates its business activities or becomes insolvent, files for bankruptcy, admits in writing its inability to pay debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.  Upon termination or suspension, regardless of the reasons therefore, Customer’s right to use the Services immediately ceases, and Customer acknowledges and agrees that Brightspot may immediately deactivate or delete Customer’s account (if applicable) and all related information and files in Customer’s account and/or bar any further access to such files and  the other Services. Brightspot shall not be liable to Customer or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by Brightspot in connection therewith. Applicable provisions of these Terms of Service shall survive any termination. Additionally, during the Term, Brightspot may terminate the Agreement upon ninety (90) days’ written notice if it determines in its sole and absolute discretion that the continued provision of Services under this Agreement is not commercially reasonable.

11. Confidentiality.  

• a. “Confidential Information” means any information disclosed previously or in the future by Brightspot (the “Disclosing Party”) to Customer (the “Receiving Party”), either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, business plans, source code, software, documentation, specifications, mock ups, financial analyses, marketing plans, customer names, customer lists, product plans, products, services, inventions, processes, designs, drawings, engineering or hardware configuration information, know-how, trade secrets, or any other proprietary or business information), which is designated as “Confidential,” “Proprietary” or some similar designation, or other information, the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession.  Moreover, it shall not be a breach of these Terms of Service for the Receiving Party to disclose to a court or other governmental body Confidential Information of the Disclosing Party which the Receiving Party is required by law to disclose to such entity, provided that the Receiving Party shall give the Disclosing Party written notice of such requirement prior to disclosure so that the Disclosing Party may seek a protective order or other appropriate relief.  The Services shall all be considered the Confidential Information of Brightspot without any further requirement of marking or designation. 
• b. Non-Disclosure and Non-Use.  The Receiving Party shall not disclose any Confidential Information of the Disclosing Party to third parties or to the Receiving Party’s employees, except those employees who require the information to perform obligations or exercise rights under these Terms of Service and who have signed a confidentiality agreement at least as protective of the Confidential Information of the Disclosing Party as these Terms of Service.  The Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose other than for the purposes contemplated by these Terms of Service.  Subject to Section 7(c) and Section 8, the Receiving Party shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the Disclosing Party.  Without limiting the foregoing, and subject to Section 7(c) and Section 8, the Receiving Party shall exercise the same degree of care to protect Confidential Information of the Disclosing Party as it does to protect its own highly confidential information of like nature, which shall in no event be less than reasonable care.  The Receiving Party shall immediately notify the Disclosing Party in the event of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information.  

12. Indemnity.  Customer shall indemnify, defend and hold harmless Brightspot and its Affiliates from and against all liabilities, amounts, damages, claims, alleged claims, costs and expenses, including attorney’s fees (collectively, “Claims”) relating to, or arising out of, (i) Customer’s or one of its Authorized User’s use or misuse of any of the Services; (ii) any misrepresentation, fraud or other act or omission that is inconsistent with the requirements of the Services or any agreements entered into between Brightspot and Customer; (iii) any breach of any provision of these Terms of Service; (iv) any violation of Applicable Laws by Customer or an Authorized User; (v) any violation of any intellectual property rights by Customer or an Authorized User, whether Brightspot’s rights or those of any third party; (vi) any Customer Materials that Customer or an Authorized User imports, uploads or otherwise provides to the Service; (vii) the Customer Offerings; (viii) any claims or issues related to third party integrations or third party technology or platforms; or (ix) any claims by third parties (including Customer’s customers) arising from or as related to Customer’s use of the Services.  Brightspot reserves the right, at Brightspot’s own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will cooperate with Brightspot in asserting any available defenses.

13. Limitation of Liability. BRIGHTSPOT SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF SOURCE MEDIA AND/OR CUSTOMER CONTENT, OR COSTS OF RECREATING LOST SOURCE MEDIA AND/OR CUSTOMER CONTENT) ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE TOTAL AGGREGATE AND CUMULATIVE LIABILITY OF BRIGHTSPOT ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE SHALL BE THE SERVICES FEES OWED BY CUSTOMER TO BRIGHTSPOT IN THE THREE MONTHS PRIOR TO SUCH CLAIM. CUSTOMER AND BRIGHTSPOT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR THESE TERMS OF SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES AND OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.  

14. Disclaimer of Warranties.  EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, THE PLATFORM AND THE SERVICES ARE PROVIDED TO CUSTOMER “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND.  BRIGHTSPOT EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET-ENJOYMENT, ACCURACY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE.  THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS OF SERVICE.  NO USE OR DISTRIBUTION OF THE SERVICES IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.  NO WARRANTIES ARE CREATED BY ANY COURSE OF DEALING BETWEEN THE PARTIES, TRADE USAGE OR INDUSTRY CUSTOM.  EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, BRIGHTSPOT SPECIFICALLY DISCLAIMS ANY REPRESENTATION AND WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR WILL FUNCTION UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES CAN OR WILL BE CORRECTED, THAT ANY SUCH CORRECTION CAN OR WILL BE MADE IN A TIMELY MANNER, THAT THE SERVICES WILL OPERATE IN THE COMBINATIONS WHICH MAY BE REQUIRED OR WILL PRODUCE THE RESULTS REQUIRED.  BRIGHTSPOT DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S SPECIFIC REQUIREMENTS. 

15. International Use.  Although the Services may be accessible worldwide, Brightspot makes no representation that use of the Services is compliant with foreign law.  If Customer chooses to access the Services from other locations, Customer does so on Customer’s own initiative and is responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with the Services is void where prohibited.

16. Electronic Contracting and User Notices.  Customer’s affirmative act of viewing or using any portion of the Services (including, without limitation, submitting any forms or communications via the Platform) or other acceptance of these Terms of Service as described above constitutes Customer’s electronic signature to these Terms of Service and Customer’s consent to enter into agreements with Brightspot electronically.  Customer also agrees that Brightspot may, but has no obligation to, send to Customer in electronic form any privacy or other notices, disclosures, reports, documents, communications or other records regarding the Services (collectively, “Notices”).  Brightspot can send Customer electronic Notices (i) to the e-mail address that Customer provided to Brightspot (if any), or (ii) by posting the Notice through the Services.  The delivery of any Notice from Brightspot is effective when sent or posted by Brightspot, regardless of whether Customer reads or views the Notice when Customer receives it or whether Customer actually receives the delivery.  Customer can withdraw Customer’s consent to receive Notices electronically by discontinuing Customer’s use of the Services.  Customer can retrieve an electronic copy of this contract by clicking on the “Terms of Service” link on a Site or as set forth in the Services.  All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.  

All questions, complaints, claims or other notices to Brightspot shall be in writing and shall be made using any contact functions made available via the Services.

Any notices or communication under these Terms of Service will be deemed delivered to Brightspot on the delivery date.

17. Law; Venue.  Customer agrees that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern these Terms of Service and any claim or dispute that has arisen or may arise between Customer and Brightspot, except as otherwise stated in these Terms of Service. All actions related to these Terms of Service shall take place in Fairfax, Virginia, including any arbitration as contemplated below.   

18. Arbitration.

• a. Agreement to Arbitrate. This Section is referred to as the “Arbitration Agreement.” Customer agrees that any and all disputes or claims that have arisen or may arise between Customer and Brightspot, whether arising out of or relating to these Terms of Service or in connection with Customers use of the Services, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Customer may assert individual claims in small claims court, if Customer’s claims qualify. Customer agrees that, by agreeing to these Terms of Service, Customer and Brightspot are each waiving the right to a trial by jury or to participate in a class action. Customer’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either Party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
• b. Prohibition of Class and Representative Actions and Non-Individualized Relief. Customer and Brightspot agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both Customer and Brightspot agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
• c. Pre-Arbitration Dispute Resolution. Brightspot is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly and to the participant’s satisfaction by emailing Brightspot’s support team at support@brightspot.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Brightspot should be sent to Brightspot at 12120 Sunset Hills Road, the 6th Floor, Reston, VA 20190 Attn: COO with separate copy to CEO (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Brightspot and Customer do not resolve the claim within sixty (60) calendar days after the Notice is received, Customer or Brightspot may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Brightspot or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Brightspot is entitled.
• d. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Brightspot and Customer agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If Customer’s claim is for $10,000 or less, Brightspot agrees that Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If Customer’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
• e. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
• f. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
• g. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause (b) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of clause (b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of these Terms of Service will continue to apply.

19. General.

• a. Assignment; Reproduction of Sites. Customer may not assign Customer’s rights and obligations under these Terms of Service to any third party, and any purported attempt to do so shall be null and void. Brightspot may freely assign Brightspot’s rights and obligations under these Terms of Service and transfer, assign or novate these Terms of Service.
• b. Force Majeure. In addition to any excuse provided by applicable law or under these Terms of Service, Brightspot shall be excused from liability for non-delivery or delay in delivery of products and services available through the Services arising from any event beyond Brightspot’s reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond Brightspot’s reasonable control, whether or not similar to those which are enumerated above.
• c. Enforceability; Severability. If any part of these Terms of Service are held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
• d. No Waiver. Any failure by Brightspot to enforce or exercise any provision of these Terms of Service or related rights shall not constitute a waiver of that right or provision or a waiver of Brightspot’s right to enforce or exercise any such provision of these Terms of Service in the future.
• e. Intended Beneficiaries. These Terms of Service are strictly between Brightspot and Customer. There are no intended third party beneficiaries of these Terms of Service.
• f. Government Sales. If Customer is a branch or agency of the United States Government or a contractor thereto, the following provision applies. As defined in FAR section 2.101, the Services and related documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of these Terms of Service and will be prohibited except to the extent expressly permitted by the terms of these Terms of Service.
• g. Use of Words. The term “including” as used in these Terms of Service shall mean “including, without limitation,” unless the context otherwise requires.
• h. Entire Agreement. These Terms of Services and Brightspot’s Data Processing Addendum constitute the entire agreement and understanding between Brightspot and Customer concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto. These Terms of Service may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by Customer and Brightspot.
• i. Independent Contractors. In performing these Terms of Service, the Parties act and shall act at all times as independent contractors, and nothing contained in these Terms of Service shall be construed or implied to create an agency, partnership or employer and employee relationship between the Parties. Except as expressly set forth in these Terms of Service, at no time shall either Party make commitments or incur any charges or expenses for, or in the name of, the other Party.

BY USING THE PLATFORM AND/OR ANY OF BRIGHTSPOT’S OTHER SERVICES AND/OR ACCEPTING THESE TERMS OF SERVICE (OR OTHERWISE BEING BOUND AS DESCRIBED ABOVE), CUSTOMER AGREES TO BE BOUND BY THESE TERMS OF SERVICE. IF CUSTOMER DOES NOT WISH TO BE BOUND BY THE THESE TERMS OF SERVICE, PLEASE EXIT THE PLATFORM NOW AND CEASE ALL FURTHER USE THEREOF AND OF ALL OTHER SERVICES.

Brightspot SLA Policy Page

SLAs:

Uptime: Brightspot shall use commercially reasonable efforts to maintain uptime for the Platform of no less than 99.5% of the time, 24 hours per day, seven days per week, including holidays measured on a monthly basis, where the numerator is represented by the number of minutes in a given month that the Authorized Experience(s) is not unavailable and the denominator is represented by the number of minutes in a given month less any downtime due to SLA Exclusions (the “Service Level”).

Remedy: As Customer’s sole and exclusive remedy for Brightspot’s breach of the above Service Level, upon Customer’s written request which is made in the month following the month during which such Service Level breach occurred, Brightspot shall credit Customer for 10% of the pro-rated value for the Services for the month during which such Service Level breach occurred.

SLA Exclusions:

Notwithstanding the foregoing, Brightspot shall not be responsible, accountable or liable for maintaining the Service Levels to the extent such service or performance level objectives are not met or satisfied based on any downtime or performance issues related to or arising out of any of the following (collectively, the “SLA Exclusions"):

(1) any scheduled downtime time for upgrades, repair and regular network maintenance that is properly noticed to Customer at least 24 hours in advance or takes place during any regularly scheduled maintenance windows (i.e. off-peak hours) (“Allowed Downtime”),

(2) any material alteration or modification to the Platform made by any person other than Brightspot,

(3) any downtime for Customer resulting from the incorrect or improper use of the Platform by Customer, (4) failure by Customer to implement Brightspot recommendations in respect of any solutions or workarounds to known errors or bugs previously advised by Brightspot,

(5) errors or problems directly caused by Customer’s systems, websites, technology or software while utilizing the Platform,

(6) Customer’s equipment, hardware or Internet connectivity, including, without limitation, Customer not using the required equipment outlined in the Terms of Service, Documentation or required by Brightspot (or such other hardware and software as may be otherwise mutually agreed by the parties in writing),

(7) the use by Customer of the Platform for any purpose for which it was not specifically designed,

(8) errors or problems caused, at least in part, by Customer Materials or any Authorized User inputs,

(9) any third party interference, attacks or other malicious activity (e.g. a hacking event), or

(10) any downtime or issues that are outside of the reasonable control of Brightspot.