BrightEdge Content Terms and Conditions

<h2 align="center">BrightEdge Content Product Terms</h2>

Customer’s use of BrightEdge Content (the “Product”) is subject to the BrightEdge Master Subscription Agreement (the “MSA”) between Customer and BrightEdge and these additional product-specific terms (together with the MSA and the Order Form, the “Agreement’).  Any capitalized terms used but not defined below shall have the meaning ascribed to them in the MSA.

These Terms set forth the general terms and conditions of Customer’s use of the Product and any and all BrightEdge services performed to provide the Product to Customer 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. These Terms do not have to be signed to be binding. The parties will indicate their assent to these Terms by mutually executing a document hereunder reflecting Customer’s purchases of the Product and related services (the “Order Form”).  In the event that there is any conflict or inconsistency between these Terms and the MSA, these Terms shall control and govern the rights and obligations regarding Customer’s use of the Product.

1. LICENSE. Upon payment of all the 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 use the Product solely in connection with the Customer’s use of the Services, for a period not to extend beyond Customer’s current Subscription End Date set forth in a mutually agreed-upon Order Form by and between Customer and BrightEdge.

2. REPRESENTATIONS. Customer represents and warrants: (i) it owns all rights in and to any content uploaded or created by Customer  ("User Content") relating to its use of the Product, including any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials, or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to the User Content, as necessary to legally use, publish, transfer or license any and all rights and interests in and to such User Content; (ii) the User 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 Product’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 have 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 User Content, and Customer will adhere to all laws applicable thereto.

3. RESTRICTIONS. Customer recognizes that the license herein is granted solely for the purpose of Customer’s internal business use of the Product and thus Customer will not (and will not allow any third party to): (i) decompile, disassemble, or otherwise reverse engineer the Product or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Product by any means whatsoever; or (ii) use or copy the Product, in whole or in part, except as expressly allowed herein. Customer further acknowledges and agrees that: (a) Customer’s use of the Product, including any content Customer submit, will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations; (b) Customer will not use the Product in a manner (as determined by BrightEdge in its sole and absolute discretion) that: (1) is illegal, or promotes or encourages illegal activity; (2) infringes on the intellectual property rights of any other person or entity; (3) violates the privacy or publicity rights of any other person or entity, or breaches any duty of confidentiality that Customer owes to any other person or entity; (4) interferes with the operation of the Product; and (5) contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any BrightEdge software or hardware; (c) Customer will not copy or distribute in any medium any part of the Product, except where expressly authorized by BrightEdge; and (d) Customer will not modify or alter any part of the Product or any of its related technologies. Customer agrees to back-up all of Customer’s User Content so that Customer can access and use it when needed. BrightEdge does not warrant that it backs-up any User Content, and Customer agrees to accept as a risk the loss of any and all of Customer’s User Content.

4. CONTENT OWNERSHIP. As between BrightEdge and Customer, Customer shall own all intellectual property rights pertaining to User Content. 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 (“BrightEdge Content”). Customer will have no rights in any BrightEdge Content except as expressly set forth in this Agreement.  Customer hereby grants BrightEdge a royalty-free, perpetual, irrevocable, non-exclusive, transferable and sublicensable right and license to use User Content (in whole or in part) worldwide in order to provide Customer with the Product as set forth in this Agreement. Under no circumstances may BrightEdge be considered as a "publisher" of any User Content, does not in any way endorse any User Content, and assumes no liability for any User 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 User Content. Furthermore, BrightEdge shall not be liable for any mistakes, defamation, libel, falsehoods, obscenity, incitement and/or any other unlawful and/or infringing User Content Customer or any other party may encounter.

5. ASSIGNMENT OF CONTENT PACK OWNERSHIP. Where Customer has purchased the BrightEdge Content Pack Feature, BrightEdge may produce content on behalf of Customer (“Content Pack Deliverables”), and that such content shall be considered User Content, excluding any BrightEdge Content incorporated therein.  BrightEdge agrees that any Content Pack Deliverable is subject to copyright: (a) every aspect thereof, other than BrightEdge Content that may be incorporated into the Content Pack Deliverable, is a “work made for hire” (as defined in the U.S. Copyright Act) for Customer; (b) Customer shall be considered the author of the Content Pack Deliverable for all purposes; and (c) Customer shall be the owner of all of the rights comprised in the undivided copyright (and all renewals, extensions, and reversions thereof, and all rental rights) in and to the Content Pack Deliverable in perpetuity and throughout the universe. To the extent that any interest in any Content Pack Deliverable may not be deemed a “work made for hire” under copyright law, BrightEdge hereby irrevocably assigns to Customer all right, title and interest in any and all rights of copyright (and all renewals, extensions, and reversions thereof) of the Content Pack Deliverable other than BrightEdge Content. BrightEdge agrees that it will reasonably assist Customer in every appropriate way and at Customer’s sole cost with respect to Customer’s proprietary rights in the Content Pack Deliverables. Customer hereby grants BrightEdge a royalty-free, perpetual, irrevocable, non-exclusive, transferable and sublicensable right and license to use Content Pack Deliverables (in whole or in part) worldwide in order to provide Customer with the Product as set forth in this Agreement.

6. PRODUCT OWNERSHIP. All rights, title and interest in and to the Product, 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 Product, 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. This Agreement does not convey any right or interest in or to BrightEdge’s Intellectual Property (or any part thereof), except only for the limited license expressly granted herein. Nothing in this Agreement constitutes an assignment or waiver of BrightEdge’s Intellectual Property rights under any law. Any rights not expressly granted herein are reserved to BrightEdge.

7. 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 the Product, any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the functionality of the Product (the “Feedback”).

8. TERMINATION AND TRANSITION ASSISTANCE. Customer may terminate its use of the Product as allowed in the MSA.  Upon the permitted termination or expiration of this Agreement, Customer shall use commercially reasonable efforts (i) to cooperate with BrightEdge to assist BrightEdge in the preparation and execution of a plan to transition Customer’s User Content within the Product to another provider; provided that the period of such transition (the "Transition Period") shall not last more than ninety (90) days from such expiration or termination of this Agreement; and (ii) to fulfill all obligations in applicable Order Forms during the Transition Period.  Customer shall be solely responsible for all reasonable costs and fees associated with BrightEdge’s performance of the transition services. For the avoidance of doubt, during the Transition Period, and contingent upon Customer having made timely payment for all applicable oustanding fees, BrightEdge shall continue to provide use of the Product pursuant to the Agreement.

9. BRIGHTEDGE WARRANTIES. BrightEdge represents and warrants that it has the requisite right and legal authority to grant the license and provide the Product. Subject to the terms and conditions of this Agreement and our other policies and procedures, BrightEdge shall use commercially reasonable efforts to attempt to make the Product available on a twenty-four (24) hours a day, seven (7) days a week basis. Customer acknowledges and agrees that the Product 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 Product on a continuous or uninterrupted basis, and that BrightEdge assumes no liability to Customer or any other party with regard thereto. THE PRODUCT IS PROVIDED "AS IS". BRIGHTEDGE MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT OR ANY OTHER CONFIDENTIAL INFORMATION AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HERBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

10. 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) Customer’s violation of any third party right, including any copyright, property, or privacy right, resulting from User Content and/or Customer’s use of the Product; and/or (b) any other type of claim that  User Content caused damage to a third party.  For the purpose of clarity, the limitations in Section 8 in the MSA (Limitation of Liability) shall not apply to the obligations herein.

11. BILLING AND AUDIT RIGHTS. Customer may be subject to additional fees if Customer has exceeded Product usage limits provided in the applicable Order Form. BrightEdge shall have the right, with reasonable notice to Customer, to monitor and audit Customer’s use of the Product periodically for the sole purpose of tracking Customer’s Product usage in order to appropriately invoice for fees pertaining to continuing incremental use of the Product as provided in the terms of the Order Form.

12. ANONYMIZED DATA AND COOKIES. Customer acknowledges and agrees, when Customer or Customer’s End Users access or use the Product, BrightEdge may collect information about Customer’s and End User’s use of the Product and/or any and all pages accessed once Customer or its End Users engage with the Product (including but not limited to pages on Customer’s website), in order to provide and improve the Product and affiliated services.  During and after the term of the Agreement, BrightEdge may use and owns all such anonymized data within the Product for purposes of enhancing the Product and affiliated services, aggregated statistical analysis, technical support and other business purposes.  For example, BrightEdge may collect Customer’s browser type and IP address through log files. Such information shall not include any data that would enable the identification of Customer, Customer’s data or Confidential Information. In addition, BrightEdge or BrightEdge’s third-party partners may collect and store certain information from Customer’s browser using "cookies." Customer agrees to disclose such uses in its privacy policy, which complies with applicable laws.