BrightEdge Infrastructure Product Terms
Customer’s access to and use of the BrightEdge Content, BrightEdge Autopilot, BrightEdge Foundations and/or BrightEdge Link Equity Manager products (the “Product”) is subject to the Master Subscription Agreement (“MSA”) between Customer and BrightEdge Technologies, Inc. (“BrightEdge”) and these additional Infrastructure Product Terms (the “Product Terms”) (together with the MSA, the “Agreement”). Any capitalized terms used but not defined below shall have the meaning ascribed to them in the MSA. In the event that there is any conflict or inconsistency between these Product Terms and the MSA, these Product Terms shall control and govern the rights and obligations regarding Customer’s use of the Product.
These Product 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. Customer agrees to abide by the most recent version of the Product Terms each time the Customer accesses or uses the Product. These Product Terms do not have to be signed to be binding.
YOUR USE OF THE PRODUCT MEANS THAT YOU AGREE TO THESE PRODUCT TERMS AND CONSTITUTES A BINDING AGREEMENT BETWEEN YOU AND BRIGHTEDGE. DO NOT USE THE PRODUCT IF YOU DO NOT AGREE TO THE PRODUCT TERMS IN THEIR ENTIRETY.
As the Product might be integrated with Customer’s Content Management System (CMS), Customer acknowledges that there may be unforeseen risks associated with the use of the Product, and BrightEdge disclaims all liability related to such unforeseen risk. BrightEdge shall not guarantee or be responsible for any custom code. In addition, if Product is in Limited Release, BrightEdge may discontinue the Product at any time. Customer acknowledges that it may lose all its data inputted during its access to the Product during the limited release period.
NOW, THEREFORE, in consideration of the promises set forth herein, the parties hereto agree as follows:
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 (the “Term”). Subject to the terms and conditions set forth in this Agreement, BrightEdge hereby grants to Customer a nonexclusive, nontransferable, perpetual, irrevocable, worldwide license to use and maintain BrightEdge Product Content generated for and/or published on Customer’s website.
2. REPRESENTATIONS. Customer represents and warrants: (i) it owns all rights in and to any content uploaded or created by Customer ("Customer 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 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 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 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.
3. RESTRICTIONS. Customer recognizes that the licenses herein are granted solely for the purpose of Customer’s internal business use of the Product, and 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 submits and/or approves for inclusion on Customer’s website, 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 Customer Content so that Customer can access and use it when needed. BrightEdge does not warrant that it backs-up any Customer Content, and Customer agrees to accept as a risk the loss of any and all of Customer’s Customer Content.
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 this Agreement. 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”). Customer will have no rights in any BrightEdge Product Content except as expressly set forth in this Agreement. 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 Product as set forth in this Agreement. Under no circumstances may BrightEdge (i) be considered as a "publisher" of any Customer Content; (ii) in any way endorse any Customer Content; and (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 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 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 this Agreement 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 the Product, any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the functionality of the Product.
7. 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 BrightEdge’s other policies and procedures, BrightEdge shall use commercially reasonable efforts to attempt to make the Product available on a twenty-four (24) hours per day, seven (7) days per 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, ANY CUSTOM CODE OR ANY OTHER CONFIDENTIAL INFORMATION AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HERBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. EXCEPT AS OTHERWISE PROVIDED HEREIN, BRIGHTEDGE MAKES NO WARRANTY THAT THE PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS OR NEEDS OR THAT THE PRODUCT 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 PRODUCT OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE PRODUCT OR THAT THE PRODUCT WILL HAVE DEFECTS, OR THAT SUCH DEFECTS IN THE PRODUCT 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) Customer’s violation of any third party right, including any copyright, property, or privacy right, resulting from Customer Content and/or Customer’s use of the Product; 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 DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS ARISING FROM, CONNECTED WITH, OR RELATED TO THIS AGREEMENT, WHETHER SUCH LIABILITY IS FORESEEABLE, EVEN IF BRIGHTEDGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE. THE LIMITATIONS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11. SDK INTEGRATION. In conjunction with Customer’s access to and use of the Product, BrightEdge will strive to maintain server-side SDKs that function properly in the supported versions of Java, .NET, and PHP, provided that, however, due to the complexity of web server environments, BrightEdge cannot guarantee compatibility with environmental factors such as installed software and libraries. It is Customer’s sole responsibility to perform any and all quality assurance testing prior to such integration going live. Customer may need to customize the BrightEdge SDKs to fit its specific environment(s). If Customer, in its sole discretion, integrates this service into web server applications, other than those provided above, it may need to develop a custom version of BrightEdge’s SDK. For the avoidance of doubt, the SDKs provided by BrightEdge are meant to be used as sample code to guide such development only, and BrightEdge hereby disclaims any responsibility for any code provided.
12. MODIFICATIONS. BrightEdge reserves the right to modify the Product Terms at any time to take into account changes in products or product capabilities.