BrightEdge Autopilot Convert Product Terms
These Autopilot Convert Terms set forth the general terms and conditions of Customer’s use of the Autopilot Convert Services and the Products and is in addition to (not in lieu of) any specific terms and conditions that apply to any and all other BrightEdge services provided to Customer. Customer agrees to abide by the most recent version of the Autopilot Convert Terms each time the Customer accesses or uses the Autopilot Convert Services and/or the Products. These Autopilot Convert Terms do not have to be signed to be binding.
YOUR USE OF THE AUTOPILOT SERVICES MEANS THAT YOU AGREE TO THESE AUTOPILOT CONVERT TERMS AND CONSTITUTES A BINDING AGREEMENT BETWEEN YOU AND BRIGHTEDGE. DO NOT USE THE AUTOPILOT CONVERT SERVICES OR ANY PRODUCT IF YOU DO NOT AGREE TO THE AUTOPILOT CONVERT TERMS IN THEIR ENTIRETY.
If the Autopilot Convert Services are offered on a beta, limited or trial basis (a “Beta Release”), BrightEdge may discontinue the Beta Release offering at any time. Customer acknowledges that it may lose all its data inputted during its access to the Product during the Beta Release period. Beta Releases are provided as-is and as-available without any warranties, express or implied. Customer agrees to provide BrightEdge with comments, feedback, usage data and other information relating to Customer’s use of Beta Release Products if applicable.
As the Products might be integrated with Customer’s website(s), Customer Relationship Manager (CRM), and/or its Content Management System (CMS), Customer acknowledges and accepts all risks associated with the use of the Products. BrightEdge disclaims all liability related to Customer’s use of the any Product in connection with Customer’s website(s) CRM, and/or CMS. BrightEdge shall not guarantee or be responsible for any custom code used to integrate the Product(s) with Customer’s website(s), CRM, and/or CMS.
Customer agrees to the following terms:
1. LICENSE. Upon payment of any applicable fees and subject to the terms and conditions herein and those of the associated Order Form, Customer acknowledges that it shall have only a limited, nonexclusive, nontransferable license to access the Autopilot Convert Services and use the Product(s) solely during Customer’s current Subscription Period set forth in a mutually agreed-upon Order Form by and between Customer and BrightEdge or as selected by Customer within the Autopilot Convert Services (the “Term”). Subject to the terms and conditions set forth in these Autopilot Convert Terms and any applicable MSA, BrightEdge hereby grants to Customer a nonexclusive, nontransferable, worldwide license to access the Autopilot Convert Services and use the Product(s) solely for Customer’s internal business purposes.
2. REPRESENTATIONS. Customer represents and warrants: (i) it owns all rights in and to any data or content uploaded or created by Customer ("Customer Content"), including all data relating to Customer’s personnel, End Users, or other individuals as well as any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials, or otherwise has (and will continue to have) the full power, title, licenses, consents and authority, in and to the Customer Content, as necessary to legally use, publish, transfer or license any and all rights and interests in and to such Customer Content; (ii) the Customer Content is (and will continue to be) true, current, accurate, non-infringing upon any third party rights, and in no way unlawful for Customer to possess, post, transmit or display in the country in which Customer or the Autopilot Convert Service’s visitors and users ("End Users") reside, or for BrightEdge and/or Customer’s End Users to use or possess in connection with the Product; and (iii) Customer has obtained all consents and permissions required under all applicable laws regarding the posting, transmission and publication of any personal information and/or image or likeness of any person, entity or property which is part of the Customer Content, and Customer will adhere to all laws applicable thereto.
4. CONTENT OWNERSHIP. As between BrightEdge and Customer, Customer shall own all intellectual property rights pertaining to Customer Content. BrightEdge will have no rights in any Customer Content except as expressly set forth in these Autopilot Convert Terms and the MSA if applicable. BrightEdge will exclusively own all intellectual property rights, title and interest in and to designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques and any other materials provided or created by BrightEdge and/or the Product (“BrightEdge Product Content”). these Autopilot Convert Terms and the MSA if applicable. For the purposes of BrightEdge’s hosting of Customer Content, Customer hereby grants BrightEdge a royalty-free, perpetual, irrevocable, non-exclusive, transferable and sublicensable right and license to use Customer Content (in whole or in part) worldwide in order to provide Customer with the Autopilot Convert Services and Products as set forth in these Autopilot Convert Terms and the MSA if applicable. Under no circumstances will BrightEdge (i) be considered a "publisher" of any Customer Content; (ii) in any way endorse any Customer Content; or (iii) assume liability for any Customer Content uploaded, posted, published and/or made available by Customer or any other party on and/or through the Product, for any use by any party, or for any loss, deletion or damage thereto or thereof or any loss, damage, cost or expense that Customer or others may suffer or incur as a result of or in connection with publishing, accessing and/or relying on any Customer Content. Furthermore, BrightEdge shall not be liable for any mistakes, defamation, libel, falsehoods, obscenity, incitement and/or any other unlawful and/or infringing Customer Content Customer or any other party may encounter.
5. PRODUCT OWNERSHIP. All rights, title and interest in and to Autopilot Convert Services and the Products, including any and all copyrightable materials or any other content thereof which is or may be subject to any intellectual property rights under any applicable law (including any artwork, graphics, images, website templates and widgets, literary work, source and object code, computer code (including html), applications, audio, music, video and other media, designs, animations, interfaces, the "look and feel" of the Autopilot Convert Services and Products, methods, products, algorithms, data, interactive features and objects, advertising and acquisition tools and methods, inventions, trade secrets, logos, domains, customized URLs, trademarks, service marks, trade names and other proprietary identifiers, whether or not registered and/or capable of being registered (collectively, "Intellectual Property"), and any derivations thereof, are owned by and/or licensed to BrightEdge. These Autopilot Convert Terms do not convey any right or interest in or to either Customer’s intellectual property or BrightEdge’s Intellectual Property (or any part thereof), except only for the limited license expressly granted herein. Nothing in these Autopilot Convert Terms constitutes an assignment or waiver of either Customer’s intellectual property or BrightEdge’s Intellectual Property rights under any law. Any rights not expressly granted herein are reserved to BrightEdge.
6. FEEDBACK. Customer hereby grants BrightEdge a royalty-free, nonexclusive, perpetual, irrevocable, worldwide, transferable (only to a successor by way of merger, reorganization or sale of all or substantially all assets or equity), sublicensable license to use, copy, modify, or distribute, including by incorporating into BrightEdge’s products, services and other technology and offerings, any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Autopilot Convert Services or Products.
7. BRIGHTEDGE WARRANTIES AND DISCLAIMER. BrightEdge represents and warrants that it has the requisite right and legal authority to grant the license and provide the Autopilot Convert Services and Products. Subject to the terms and conditions of these Autopilot Convert Terms, the MSA if applicable, and BrightEdge’s other policies and procedures, BrightEdge shall use commercially reasonable efforts to attempt to make the Autopilot Convert Services available on a twenty-four (24) hours per day, seven (7) days per week basis. Customer acknowledges and agrees that the Autopilot Convert Services may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that BrightEdge undertakes from time to time; or causes beyond BrightEdge’s reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. Customer acknowledges and agrees that BrightEdge has no control over the availability of the Autopilot Convert Services or Products on a continuous or uninterrupted basis, and that BrightEdge assumes no liability to Customer or any other party with regard thereto.
THE AUTOPILOT CONVERT SERVICES AND PRODUCTS ARE PROVIDED "AS IS." EXCEPT AS SPECIFICALLY EXPRESSED HEREIN, OR IN THE MSA (IF APPLICABLE), BRIGHTEDGE MAKES NO OTHER WARRANTY WITH RESPECT TO THE AUTOPILOT CONVERT SERVICES OR PRODUCTS, ANY CUSTOM CODE OR ANY OTHER CONFIDENTIAL INFORMATION, AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HERBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. EXCEPT AS OTHERWISE PROVIDED HEREIN, BRIGHTEDGE MAKES NO WARRANTY THAT THE AUTOPILOT CONVERT SERVICES OR PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS OR NEEDS OR THAT THE AUTOPILOT CONVERT SERVICES OR PRODUCTS WILL BE UNINTERRUPTED, TIMELY, OR BE FREE FROM SOFTWARE ERRORS OR BUGS, NOR DOES BRIGHTEDGE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE AUTOPILOT CONVERT SERVICES OR PRODUCTS OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE AUTOPILOT CONVERT SERVICES OR THAT THE AUTOPILOT CONVERT SERVICES OR PRODUCTS WILL BE FREE OF DEFECTS, OR THAT SUCH DEFECTS WILL BE CORRECTED.
8. INDEMNIFICATION. Customer agrees to defend, indemnify and hold harmless BrightEdge, its officers, directors, shareholders, employees, affiliates and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses (including attorneys' fees) arising from: (a) claims that Customer has violated any third party right, including any copyright, property, or rights relating to personally identifiable information or data privacy, resulting from Customer Content and/or Customer’s use of the Autopilot Convert Services or ProductS; and/or (b) any other type of claim that Customer Content caused damage to a third party.
9. LIMITATION OF LIABILITY. IN NO EVENT WILL BRIGHTEDGE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS ARISING FROM, CONNECTED WITH, OR RELATED TO THESE AUTOPILOT CONVERT TERMS, WHETHER SUCH LIABILITY IS FORESEEABLE, EVEN IF BRIGHTEDGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR WHETHER THE DAMAGES ARISE FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE. BRIGHTEDGE’S MAXIMUM LIABILITY, IN AGGREGATE, FOR ALL CLAIMS RELATING TO THESE AUTOPILOT CONVERT TERMS, SHALL NOT EXCEED AMOUNTS PAID BY CUSTOMER TO BRIGHTEDGE IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIMS. THE LIMITATIONS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE AUTOPILOT CONVERT TERMS (OR THE MSA IF APPLICABLE) IS FOUND TO HAVE FAILED IN ITS ESSENTIAL PURPOSE.
11. FEES AND BILLING. By using the Autopilot Convert Services, Customer expressly authorizes BrightEdge to charge the subscription fees and any other charges incurred in connection with Customer’s use of the Autopilot Convert Services and Products. Unless indicated in a separate signed agreement, all payments are made by credit card. When a subscription automatically renews, Customer authorizes BrightEdge to charge the thencurrent fees for the applicable subscription via credit card or other stored payment method. Customer must cancel applicable subscriptions before renewal in order to avoid charging the next period's subscription fees. If Customer elects to upgrade the service level or otherwise add any paid component or feature, prorated fees will be charged based on the number of days remaining in the billing cycle.
Downgrading the service level may cause loss of content and/or features. BrightEdge does not accept any liability for such loss. Customer may cancel a subscription to the Autopilot Convert Services at any time, and cancellation will be effective immediately. Except and to the extent required by applicable law BRIGHTEDGE DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL SUBSCRIPTION PERIODS OR ANY PRODUCT, FEATURE, OR COMPONENT ORDERED BUT NOT USED.
Subscription fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including valueadded, use or withholding taxes (collectively, "Taxes"). Customer is responsible for paying all Taxes, excluding taxes based on BrightEdge’s net income or property.
12. MODIFICATIONS. BrightEdge reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Autopilot Convert Services or Products (or any part thereof) with or without notice. BrightEdge shall not be liable to Customer or to any third party for any modification, suspension or discontinuance of the Autopilot Convert Services or Products.
13. TERMINATION. BrightEdge may without prior notice immediately terminate Customer accounts and access to the Autopilot Convert Services. Such termination may be made in BrightEdge’s sole and absolute discretion with or without cause. For illustrative purposes only, the situations in which BrightEdge might terminate your account and access to the Autopilot Convert Services shall include, but not be limited to: (a) breaches or violations of these Autopilot Convert Terms or other incorporated agreements or guidelines; (b) requests by law enforcement or other government agencies; (c) a request by Customer (self-initiated account deletions); (d) discontinuance or material modification to the Autopilot Convert Services (or any part thereof); (e) unexpected technical or security issues or problems; (f) extended periods of inactivity; (g) fraudulent or illegal activities of Customer or any End User; and/or (h) nonpayment of any fees owed by Customer in connection with a subscription. BrightEdge shall not be liable to Customer or any third party for any termination of Customer’s account, or access to the Autopilot Convert Services.
14. COPYRIGHT POLICY. If you believe that anything displayed within the Autopilot Convert Services infringes any copyright that you own or control, you may notify our DMCA Designated Agent as follows:
Designated Agent: William Krueger
Address: 989 East Hillsdale Blvd., Suite 300, Foster City, CA 94404 USA
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification.
15. MISCELLANEOUS. BrightEdge and Customer are independent contractors and not partners or otherwise affiliated and neither has any right or authority to bind the other in any way. These Autopilot Convert Terms (and the MSA if applicable) constitutes the entire agreement between BrightEdge and Customer concerning the subject matter hereof and may only be modified by a written amendment signed by the parties. Except to the extent applicable law provides otherwise, these Autopilot Convert Terms are governed by the laws of the state of California, excluding its conflict of law provisions, and the exclusive venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in San Francisco County, California. If any part of these Autopilot Convert Terms is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and all other terms shall remain in full force and effect. A waiver by either party of any term or condition or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. Neither party may assign this agreement without the other party’s written consent; provided that, either party may assign this agreement, without consent, to an acquirer of all or substantially all of its business or assets. If such assignment is to a competitor of the non-assigning party, the non-assigning party may terminate this agreement upon written notice. These Autopilot Convert Terms will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns
BrightEdge reserves the right to modify these Autopilot Convert Terms at any time to take into account changes in products or product capabilities.