Terms of Service

This Terms of Service (“TOS”) is entered into by and between BrightBytes, Inc., (hereinafter “BrightBytes”) and you (hereinafter “Customer,” “you,” or “your”). Any reference to this “Agreement” means this TOS, the Customer Agreement between you and BrightBytes and any statements of work attached thereto. Capitalized terms not defined in this TOS will have the meaning provided in your Customer Agreement with BrightBytes.

1. Terms and conditions

Please read the following terms and conditions of this TOS. This TOS forms a contract between you and BrightBytes that governs your access to and use of BrightBytes’ interactive online software solution ClarityTM and Prosper (the “Platform”) and any Services provided to you by BrightBytes pursuant to a SOW. BY ACCEPTING THIS TOS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A CUSTOMER AGREEMENT THAT REFERENCES THIS TOS, YOU AGREE TO THE TERMS OF THIS TOS. BY USING THE PLATFORM OR OBTAINING SERVICES FROM BRIGHTBYTES, YOU AFFIRM THAT YOU (i) ARE AT LEAST 18 YEARS OF AGE OR OLDER AND (ii) HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS TOS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE PLATFORM AND PROMPTLY INFORM BRIGHTBYTES.

2. Grant of License

2.1 Grant. Subject to the terms and conditions of this TOS, BrightBytes hereby grants you a revocable, non-exclusive, non-transferable (subject to Section 9.8 of this TOS), non-sublicensable right to access and use the Platform solely for your own internal business purposes. Your right to access the Platform or authorize users to access the Platform is limited to the number of Authorized Users set forth in the applicable purchase order or SOW. Authorized User access cannot be shared or used by more than one individual but may be reassigned from time to time to new users who are replacing former users. All rights not expressly granted to you are reserved by BrightBytes and its licensors.

2.2 Use Restrictions. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party (other than Authorized Users) the Platform in any way; (ii) modify or make derivative works based upon the Platform; (iii) provide access to the Platform via any other server or wireless or Internet-based device; (iv) reverse engineer, decompile, disassemble or attempt to derive the software source code of the Platform or (v) access the Platform in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Platform, or© copy any ideas, features, functions or graphics of the Platform. You may use the Platform only for your internal business purposes and shall not use the Platform in violation of any applicable laws or rights of third parties.

3. Customer Data

3.1 Customer Data. Customer is responsible for all the data or information submitted or provided by Customer in connection with Customer’s use of the Platform (“Customer Data”) and will have sole responsibility for the accuracy, completeness, quality and legality of all Customer Data. All Customer Data that you submit or that is submitted on your behalf to the Platform in the course of using the Platform belongs to you, and BrightBytes does not have any ownership over such Customer Data. Notwithstanding the foregoing, BrightBytes will have the right to collect, copy, store, use, analyze and disclose Customer Data so long as such Customer Data is only on an aggregated basis and does not include any personally identifiable information. You, not BrightBytes, shall have sole responsibility for assuring that you own or otherwise have the right to use any or all of the Customer Data without infringing the intellectual property, privacy or other rights of any other party. BrightBytes reserves the right to withhold, remove or discard Customer Data without notice for any breach of this TOS, including, without limitation, your non-payment of fees when due.

3.2 Customer Data Upon Termination. Upon termination of the Agreement, BrightBytes will allow you access to your Customer Data for a period of 30 days for the purpose of downloading or archiving your Customer Data. After such period, BrightBytes may remove or delete such Customer Data from the Platform without liability to you.

4. Intellectual Property Ownership

BrightBytes and its licensors own all right, title and interest, including all related intellectual property rights in and to the Platform and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Platform. This TOS is not a sale and does not convey to you any rights of ownership in or related to the Platform or the intellectual property rights owned by BrightBytes. The BrightBytes names, the BrightBytes logos, and the product names associated with the Platform are trademarks of BrightBytes or third parties, and no right or license is granted to use them.

5. Confidential Information.

5.1 Confidential Information. “Confidential Information” means any proprietary or non-public information that one party (the “Disclosing Party”) discloses or makes available to the other party (the “Receiving Party”), which the Receiving Party knows or has reason to know is considered confidential or proprietary by the Disclosing Party, including, but not limited to, the terms of this Agreement, information regarding either party’s business, strategies, plans, suppliers, clients, finances, business plans, product development, technology and software. Confidential Information will not include (i) information that is in the public domain before the Effective Date or becomes generally available to the public other than as a result of disclosure by the Receiving Party, (ii) information available to the Receiving Party on a non-confidential basis before receipt from the Disclosing Party, (iii) information received by the Receiving Party from a third party who is under no obligation to keep the information confidential; or (iv) information developed independently by the Receiving Party, without using or referring to the Disclosing Party’s Confidential Information, as evidenced by Receiving Party’s written records.

5.2 Use. The Receiving Party shall not use the Confidential Information of the Disclosing Party except for the purpose of exercising its rights or carrying out its obligations under this Agreement. The Receiving Party will not disclose the Confidential Information of the Disclosing Party to any third party, except as authorized in this Agreement. The Receiving Party will use the same degree of care to prevent such misuse or disclosure that the Receiving Party uses with respect to its own highly confidential and proprietary information, but in no event with less than reasonable care.

5.3 Non-Disclosure. The Receiving Party may disclose Confidential Information of the other party only to its employees, consultants, contractors or agents when such disclosure is reasonably necessary for the Receiving Party to exercise its rights in compliance with, and only for purposes contemplated by, this Agreement, provided such employees, consultants, contractors, agents and authorized sublicensees are advised of the confidential nature thereof and are bound by written non-disclosure obligations and restrictions no less restrictive than those set forth in this Section 5. The Receiving Party may also disclose any Confidential Information that must be disclosed pursuant to applicable law or other legal process (including, without limitation, the disclosure rules of any securities regulatory authority), provided that the Receiving Party gives the Disclosing Party prompt written notice and reasonable assistance sufficient to allow the Disclosing Party to seek a protective order, confidential treatment or other appropriate remedy to limit the scope of the required disclosure.

5.4 Remedies for Breach. Receiving Party agrees that the Disclosing Party will be entitled to equitable relief, including injunction and specific performance, in the event of any breach or threatened breach or intended breach of this Agreement by Receiving Party. However, those remedies will not be the exclusive remedies for any breach of the Agreement but will be in addition to all other remedies available at law or in equity.

5.5 No Licenses. Disclosure of Confidential Information by a party does not constitute a license with respect to such Confidential Information unless such license is expressly set forth in the Agreement. As between the parties, the Disclosing Party will retain exclusive ownership of all of its Confidential Information.

6. LIMITED WARRANTY AND DISCLAIMER

6.1 Scope of Limited Warranty. BrightBytes warrants to Licensee that during the Term, the Platform will perform substantially in accordance with its documentation or specifications. The foregoing warranty shall not apply to performance issues of the Platform (i) caused by factors outside of BrightByte’s reasonable control; (ii) that result from any actions or inactions of Customer or any third parties; or (iii) that result from Customer’s data structure, operating environment or equipment.

6.2 Sole Remedy. Should the Platform not perform or function as expressly warranted herein, BrightBytes shall use its commercially reasonable efforts to correct the nonconformities giving rise to such breach. The foregoing remedy is available only if Customer notifies BrightBytes in writing of such non-conformity within 30 days of its discovery by Customer, and BrightBytes’s examination of the Platform discloses that such non-conformity exists. The foregoing remedies shall be Licensee’s sole and exclusive remedies and Company’s entire liability for any breach of the warranty set forth in Section 6.1.

6.3 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN THIS SECTION 6, BRIGHTBYTES AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PLATFORM OR ANY SERVICES PROVIDED. BRIGHTBYTES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (I) THE USE OF THE PLATFORM OR ANY SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE PLATFORM OR ANY SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (III) ERRORS OR DEFECTS WILL BE CORRECTED, OR (IV) THE PLATFORM OR THE SERVER THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PLATFORM AND SERVICES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY BRIGHTBYTES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

6.4 Internet Delays. THE PLATFORM AND BRIGHTBYTES’ SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BRIGHTBYTES IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS OR FOR ANY UNAVAILABILITY OF THE PLATFORM OR SERVICES DUE TO UNAVAILABILITY OF, OR LACK OF PERFORMANCE BY THIRD PARTIES NECESSARY FOR PROVIDING THE PLATFORM OR SERVICES.

7. LIMITATION OF LIABILITY

IN NO EVENT WILL BRIGHTBYTES’ AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO BRIGHTBYTES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EXCEPT FOR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THE AGREEMENT, IN NO EVENT WILL BRIGHTBYTES OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE PLATFORM, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE PLATFORM, SERVICES OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE PLATFORM, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF BRIGHTBYTES HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. Indemnification

8.1 Indemnity by Customer. You will indemnify and hold BrightBytes and its affiliates and each of their officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with claims made by a third party (“Claim”) that (i) use of the Customer Data infringes the rights of, or has caused harm to, a third party; and (ii) you or your Authorized Users have breached any terms of the Agreement.

8.2 [Indemnity by BrightBytes. BrightBytes will indemnify and hold Customer and its affiliates and each of their officers, directors, employees, attorneys and agents harmless from and against any and all Claims that the Platform or Customer’s use thereof directly infringes or misappropriates a U.S. patent issued as of the Effective Date of the Agreement, copyright, trademark or trade secret of a third party. This indemnity does not apply to, and BrightBytes will have no obligation to Customer for, any infringement or misappropriation claim that arises from (i) modifications to the Platform by anyone other than BrightBytes, (ii) modifications to the Platform based upon specifications furnished by Customer, (iii) Customer’s use of the Platform other than as specified in this Agreement or in the applicable documentation, (iv) use of the Platform in conjunction with third-party software, hardware or data other than that approved by BrightBytes, or (v) any combination of the foregoing.]

8.3 The duty to indemnify pursuant to this Section 8 is conditioned on (i) the indemnified party promptly notifying the indemnifying party in writing of any Claim; provided that the failure to provide such notice shall not relieve the indemnifying party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure, (ii) the indemnifying party having the right to solely control, the defense (including any settlements) of any Claim; provided, however, that (a) the indemnifying party shall keep the indemnified Party informed of the progress of such litigation or settlement and (b) the indemnifying Party shall not settle any such Claim in a manner that does not unconditionally release the indemnified Party without the indemnified Party’s written consent, not to be unreasonably withheld or delayed, and (iii) the indemnified party providing the indemnifying party all information and assistance.

8.4 In the event any portion of the Platform is held or believed by BrightBytes to be infringing, BrightBytes may, at its sole expense and option: (i) obtain from a third party the right for Customer to continue to use the Platform; or (ii) replace or modify the Platform with a non-infringing substitute with substantially similar functionality; or (iii) if none of the foregoing remedies is commercially feasible, terminate the Agreement.

8.5 THIS SECTION 8 SETS FORTH EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION, AND EACH PARTY’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS.

9. General Provisions.

9.1 Non-Solicitation of Employment. During the Term and for a period of 12 months after termination of this Agreement, Customer agrees not to directly or indirectly recruit or solicit the employment of Company’s employees. This provision will not prevent either Customer from placing a bona fide public advertisement for employment which is not specifically targeted to employees of Company.

9.2 Independent Contractors. The relationship between BrightBytes and Customer under this Agreement is that of independent contractors only. Nothing in this Agreement will be construed so as to constitute a partnership or joint venture. Neither party will have any power or authority to bind the other party in any transaction with a third party.

9.3 Headings. The headings are provided for convenience only and shall not be used in interpreting any provision of this Agreement.

9.4 Notices. All notices, requests, claims, demands and other communications under this Agreement will be in writing and will be deemed given if delivered personally or sent by overnight courier (providing proof of delivery) to the parties at the addresses in the first paragraph or signature block.

9.5 Entire Agreement. This Agreement supersedes all prior oral and written communications between the parties concerning, and constitute their sole and exclusive understanding with respect to, the subject matter hereof.

9.6 Amendment. No amendment, modification or discharge of this Agreement, and no waiver hereunder, will be valid or binding unless set forth in a writing signed by both parties.

9.7 Assignment;. Neither party may assign this Agreement without the prior written consent of the other party, except that either party may assign this agreement without consent in connection with a merger, consolidation, restructuring or sale of all or substantially all of its equity or business or assets to which this Agreement relates.

9.8 Governing Law. This Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of [California], without regard to its conflict of law principles. Customer hereby expressly consents to the jurisdiction and venue of any federal or state court in [Los Angeles County, in the State of California.]

9.9 Severability. If any provision of this Agreement, or portion thereof, is held by a court of competent jurisdiction to be contrary to law or otherwise unenforceable, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.

9.10 Waiver. Neither the waiver by any of the parties of a breach of or a default under any of the provisions of this Agreement, nor the failure of any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder will thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder.

9.11 Attorneys’ Fees. The prevailing party in any suit, action, counterclaim, or arbitration arising out of this Agreement will be entitled to recover reasonable attorneys’ fees, litigation expenses, collection costs, and the cost of any arbitration in addition to court costs.

9.12 Compliance with Laws. Each party will comply with all federal, state and local laws and regulations, as amended from time to time, applicable to such party’s performance of its obligations under this Agreement, including all applicable export laws and regulations of the United States and other applicable jurisdictions in providing and using the Platform and those related to data privacy.

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