BrightCrowd Customer Agreement:
BrightCrowd provides printed and digital books for the purpose of highlighting individual members of academic, corporate and non-profit networks. This following terms govern the relationship between each organization or institution that purchases a BrightCrowd book (a “Customer”) and Qollaboration, Inc. a Delaware corporation that manages the BrightCrowd product (hereafter referred to as “BrightCrowd”, and together with Customer, each a “Party” and collectively the “Parties”). These terms form an agreement (the “Agreement”) by and between BrightCrowd and Customer regarding Customer’s use of the BrightCrowd digital books and all related services (the “Books”).
1. Provision of Books
Subject to Customer’s payment of the Fees and compliance with the terms of this Agreement, BrightCrowd will create Customer’s Books and provide access to the individuals designated by the Customer to manage the Books (“Authorized Users”). Authorized Users are then permitted to provision other individuals with specified roles in a each book (each a “User”) by adding them to the access list for that book (the “Access List”). Customer agrees that they will not grant access to a Book to anyone under 13 years of age. Once created, Books will be accessible to Users for the duration of this Agreement, however edits or updates to these Books will be limited to one year from the date each Book is created, unless alternate arrangements have been made. Customer is solely responsible for maintaining access to the Books and BrightCrowd will not be liable for any activities undertaken by anyone granted access by the Customer. Customer will immediately notify BrightCrowd of any unauthorized access or any other breach of security relating to the Books known to Customer.
1.2 No Software Provided, Cloud Hosting.
Customer acknowledges that BrightCrowd is not providing any software application for the Customer to download or install. Further Customer acknowledges that each Book is a standalone product and nothing in this Agreement shall require BrightCrowd to integrate any Book with Customer’s existing software applications or databases. BrightCrowd Books are entirely cloud-based and Users can access each Book via any major internet browser. BrightCrowd shall, at its own expense, provide for the hosting of the Books so that they are accessible to Users via the world wide web. BrightCrowd shall not provide for, or bear any responsibility with respect to any computer network hardware or internet browser required by any User to obtain access from the Internet to the Books.
BrightCrowd shall invoice Customer for the cost of the Books, promptly after the Books are created (the "Fees"). Fees shall be due within thirty (30) days’ of receipt of an invoice. Fees may be paid by check, ACH, credit card or other form of payment mutually agreeable to the parties. Non-payment or late payment of undisputed fees is a material breach of this Agreement. Customer shall pay interest on any overdue balance at the rate of 1 ½% per month or the maximum permitted by law, whichever is less, plus all expenses of collection. All taxes and other governmental charges (except for income taxes), if any, imposed on Customer payments hereunder shall be deemed to be in addition to the Fees charged, and borne solely by Customer.
3. Intellectual Property
3.1 License Grant.
Subject to the terms and conditions of this Agreement, BrightCrowd grants to Customer a non-exclusive, non-sublicensable, non-transferable license, solely for Customer’s use, to access and use the Books in accordance with the Terms and Conditions set forth on the BrightCrowd website.
Customer agrees that it will not, nor will Customer cause or permit any Authorized User or other party to, (a) allow any third party to access the Books, except as expressly allowed herein; (b) modify, adapt, alter or translate the Books; (c) sublicense, lease, rent, loan, distribute, transfer or otherwise allow the use of the Books for the benefit of any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Books, except as permitted by law; or (e) create derivative works based on the Books.
Except for the license granted by BrightCrowd under this Agreement, BrightCrowd owns all right, title and interest (including, but not limited to, all copyright, patent, trademark and trade secret rights) in and to the Books and the contents therein.
4. Customer Content, User Content, and Responsibilities
4.1 Customer Content.
As part of creating the Access List for each Book, Customer is required to provide an email address, and is also permitted to optionally provide a name and institutional ID number (“Access List Content”). In addition to Access List Content, Customer may also add a logo, text and photos to be displayed in the Books (collectively with the Access List Content, the “Customer Content”). BrightCrowd is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
4.2 User Content.
4.3 License; Ownership.
BrightCrowd hereby grants Custoner a non-exclusive, worldwide, royalty-free license to access and export the User Content associated with the Customer’s Books. Customer hereby grants BrightCrowd a non-exclusive, worldwide, royalty-free, fully-paid and transferable license (a) to use the Customer Content as necessary for purposes of providing the Books; (b) to use Customer’s trademarks, service marks, and logos as required to provide the Books. As between the parties, Customer owns all right, title and interest in the Customer Content. Customer does not acquire any ownership rights in any of the User Content.
4.4 Customer Warranty.
Customer represents and warrants that (a) its use of the Books will comply with all applicable requirements of the Federal Trade Commission, Federal Communications Commission and U.S. Department of Education; (b) the Customer Content shall not (i) infringe any copyright, trademark, or patent right; (ii) misappropriate any trade secret; (iii) be deceptive, libelous, obscene, pornographic or unlawful; (iv) contain any viruses, worms or other malicious computer programming codes intended to damage BrightCrowd’s system or data; or (v) otherwise violate any privacy or other right of any third party; (c) prior to inviting an individual User to access a Book, Customer has obtained the consent of the User to contact them via a third party application in such form as required to comply with applicable law; and (d) Customer will not use the emailing features within a Book to spam or otherwise send unsolicited messages to individuals. Should Customer repeatedly send email messages that bounce or otherwise impact BrightCrowd’s overall reputation with email providers, BrightCrowd reserves the right to suspend the Customer’s ability to send messages through BrightCrowd.
5. Warranties & Disclaimers
5.1 Limited Warranty.
BrightCrowd represents and warrants to Customer that the Books will operate free from material errors that substantially impact the use of the Books. Should a material error arise, Customer must notify BrightCrowd in writing detailing the steps to reproduce the error. Once notification is provided, BrightCrowd will promptly address the error and if necessary update the Books to fix the error.
THE LIMITED WARRANTY SET FORTH IN SECTION 5.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, THE SERVICES ARE PROVIDED "AS IS," AND BRIGHTCROWD MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. BRIGHTCROWD DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
6. Limitation of Liability
EXCLUDING EACH PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN IN RESPECT OF THIRD-PARTY CLAIMS, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS PERFORMANCE HEREUNDER AND (B) IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER AS A RESULT OF ANY CLAIM ARISING UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.
7. Confidentiality; Privacy
During the Term, each party ("Disclosing Party") may provide the other party ("Receiving Party") with Confidential Information. "Confidential Information" shall include all proprietary or confidential information relating to a Disclosing Party that is disclosed or otherwise supplied in confidence to the Receiving Party under this Agreement. Confidential Information does not include any information that the Receiving Party can establish: (a) was known to the Receiving Party prior to receiving the same from the Disclosing Party, free of any restrictions; (b) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; (c) is acquired by the Receiving Party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Receiving Party. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Disclosing Party’s Confidential Information to Authorized Users (with respect to Customer as Receiving Party) or to those employees who have a need to know such Confidential Information to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon the expiration or termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
7.2 Student Privacy.
In the instance where the Customer is an educational institution, BrightCrowd acknowledges that use of the Books may involve the disclosure by the Customer of information that personally identifies a student who is enrolled, or was previously, enrolled at the Customer’s institution (“Confidential Student Information”). This includes the student’s name, email address, and other information that alone or in combination would reasonably allow a person or entity to identify the student with reasonable certainty.
BrightCrowd agrees that it will not use or re-disclose Confidential Student Information except in compliance with the Family Education Rights and Privacy Act ("FERPA") (20 U.S.C. § 1232g; 34 C.F.R. Part 99) and all applicable state and federal laws. Customer acknowledges that BrightCrowd is a "school official" with a legitimate educational interest in receiving Confidential Student Information under FERPA and BrightCrowd agrees that it will comply with the requirements of 34 C.F.R. § 99.33 regarding its use and redisclosure of Confidential Student Information. Customer agrees and consents to BrightCrowd’s use of Directory Information so long as such use complies with FERPA. Customer acknowledges that it is responsible for notifying BrightCrowd that a student has opted-out of the Customer’s "Directory Information Policy." For purposes herein, “Directory Information” shall mean the following Confidential Student Information: student’s name (including audio pronunciation), the name of the student’s parents or family members, the student’s (and student family’s) address, telephone number, email address, gender pronoun, course of study, expected completion date, photographs, and any other information that is considered directory information under the Customer’s “Directory Information Policy.”
7.3 No Third-Party Servicer Status.
If the Customer is an educational institution, Customer agrees that this Agreement does not purport to render BrightCrowd a Third Party Servicer as that term is defined at 34 C.F.R. §§ 668.2, 668.25 and BrightCrowd shall not undertake any work pursuant to this Agreement inconsistent with this Section 2.4. Customer further agrees that it shall not report BrightCrowd as a Third Party Servicer to the U.S. Department of Education or any other governmental agency or accrediting body.
7.4 Data Security.
BrightCrowd agrees that it will store and process Confidential Information, including Confidential Student Information, in accordance with customary industry standards.
Each party (an “Indemnifying Party”) shall indemnify and defend the other Party (an “Indemnified Party”) and its trustees, officers, directors, employees, agents and affiliates from and against any and all third party claims, demands, suits, fees, judgments, damages, losses, costs and expenses (collectively, “Claims”), including reasonable attorneys’ fees and costs incurred in responding to such Claims, that the Indemnified Party may suffer or incur proximately caused by: (a) Indemnifying Party’s gross negligence or willful misconduct; (b) Indemnifying Party’s breach of this Agreement or violation of any applicable law; or (c) content or services provided to the Indemnified Party by the Indemnifying Party infringing or violating any patent, copyright, trademark, or other intellectual property right of a third party or misappropriating any trade secret, provided that no indemnification shall be available in the case of this clause (c) to the extent the infringement is caused by: (i) the use of the Books in combination with other products or services in a way not contemplated by this Agreement, if the infringement would not have occurred but for such combination or (ii) an alteration or modification of the Books not directed or provided by or with the consent of the Indemnifying Party, if the infringement would not have occurred but for such alteration or modification. If any portion of the product becomes, or in BrightCrowd’s opinion is likely to become, the subject of a claim of infringement, BrightCrowd shall, at BrightCrowd’s option, either: (A) procure for Customer the right to continue using the product; (B) replace the product with non-infringing products which do not materially impair the functionality of the Books; or (C) modify the Books so that they become non-infringing. If the foregoing options are not available on commercially reasonable terms and conditions, Customer shall have the option to terminate this Agreement.
8.2 Indemnification Procedure.
In the event of any claim for indemnification hereunder, the Indemnified Party shall promptly notify Indemnifying Party in writing of any such Claim and shall cooperate with the Indemnifying Party at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall control the defense and investigation of the Claim and shall employ counsel of its choice that is reasonably acceptable to the Indemnified Party to handle and defend the Claim, at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall not settle any action in a manner that adversely affects the Indemnified Party’s rights without the Indemnified Party’s prior written consent, not to be unreasonably withheld. The Indemnified Party’s failure to perform any obligations under this Section shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of the failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
9. Term and Termination
This Agreement commences on the date Customer first accesses the Books for its own use and shall continue for so long as Customer is using the Books (the "Term").
Either party may terminate this Agreement upon written notice to the other party of the intent to terminate. Such termination shall take effect (30) days after receipt of notice is received.
9.3 Effect of Termination.
Upon termination of this Agreement the licenses granted to either party shall immediately terminate. At the mutual agreement of the parties, BrightCrowd may continue to make the Books available to Customer’s Users on a limited basis. Termination shall not relieve Customer’s obligation to pay all charges accrued before the effective date of termination and Customer shall not be entitled to any refund for amounts paid prior to the Termination. Sections 3.3, 4, 5, 6, 7, 8, 9.3, 10 and 11 will survive the expiration or termination of this Agreement.
10. Governing Law and Venue
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Texas, without reference to conflicts of laws principles. Both parties expressly agree that any action relating to this Agreement shall exclusively be brought in Dallas, Texas, and both parties irrevocably consent to the jurisdiction of the state and federal courts located in Dallas, TX. Each party expressly waives any objection that it may have based on improper venue or forum non-conveniens to the conduct of any such suit or action in any such court. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its use of the Books hereunder.
The parties are independent contractors and nothing in this Agreement shall be deemed to create the relationship of partners, joint venturers, employer-employee, master-servant, or franchisor-franchisee between the parties. Neither party is, or will hold itself out to be, an agent of the other party. Neither party is authorized to enter into any contractual commitment on behalf of the other party. This Agreement, contains the entire agreement of the parties and supersedes any prior or present understanding or communications regarding its subject matter, and may only be amended in a writing signed by both parties. In the event any provision of this Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect. Neither party shall assign this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to its successor pursuant to a merger, consolidation or sale of substantially all of its assets related to this Agreement, provided it promptly notifies the non-assigning party in writing of the assignment and the assignee agrees in writing to be bound by the terms of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strikes, failure of suppliers, fires, floods or earthquakes. Any notice given under this Agreement shall be in writing and shall be sent via email to the contact set forth on the Purchase Order if being sent to the Customer or to firstname.lastname@example.org if being sent to BrightCrowd. There are no third-party beneficiaries to this Agreement. Customer agrees to allow BrightCrowd to reference Customer in any marketing material (using Customer’s name and/or Customer’s logo). This Agreement becomes valid on the date the Customer begins using the Books.