By accepting a Bright Light Digital Sales Order, you hereby agree to the following terms and conditions between you and Bright Light Digital LLC, a Hawaii limited liability company (“BRIGHT LIGHT”), governing your use of BRIGHT LIGHT’s Service.
1. Privacy & Security; Disclosure
BRIGHT LIGHT’s privacy and security policies may be viewed at www.brightlight.biz and are hereby incorporated into this Agreement by reference. BRIGHT LIGHT reserves the right to modify its privacy and security policies in its reasonable discretion from time to time.
2. License Grant & Restrictions
BRIGHT LIGHT hereby grants you a non-exclusive, nontransferable, worldwide right to permit authorized Users (as defined below) to use the Service solely for your own internal business purposes, subject to the terms and conditions of this Agreement. If you are a competitor of BRIGHT LIGHT or are in the digital signage business, you are ineligible for this license. All rights not expressly granted to you are reserved by BRIGHT LIGHT and its licensors. The attached Sales Order indicates the number of individual Licenses as to which you have been granted rights hereunder. Each License shall be associated with one (1) media player as set forth in the Sales Order. Licenses cannot be shared or used by more than one media player but may be reassigned from time to time to new media players. Multiple Users may utilize individual media players pursuant to the rights granted under the License associated with such media player. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks. The Service offers integration capabilities via an application programming interface, or API. Any use of the API, including use of the API through a third-party product that accesses BRIGHT LIGHT’s and its licensors’ Technology, is bound by the terms of this agreement. Abuse or excessively frequent requests to BRIGHT LIGHT and its licensors via the API may result in the temporary or permanent suspension of your account’s access to the API. BRIGHT LIGHT in its sole discretion will determine abuse or excessive usage of the API and will make a reasonable attempt via email to warn the account owner prior to suspension. BRIGHT LIGHT reserves the right at any time to modify or discontinue, temporarily or permanently, your access to the API (or any part thereof) with or without notice.
3. Your Responsibilities
You are responsible for all activity occurring pursuant to your Licenses and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify BRIGHT LIGHT immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) report to BRIGHT LIGHT immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users.
4. Account Information and Data
BRIGHT LIGHT does not own any data, information or material (including, without limitation, third-party audio, video or Internet sources or material) that you submit to or access through the Service in the course of using the Service (“Customer Data”). You, not BRIGHT LIGHT, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and BRIGHT LIGHT shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, unless such deletion, correction, destruction, damage, loss or failure is due to BRIGHT LIGHT’s actions or inactions, including but not limited to server failure, in which case BRIGHT LIGHT’s liability, if any, shall be governed by the terms hereof.
5. Intellectual Property Ownership
BRIGHT LIGHT alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the BRIGHT LIGHT Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the BRIGHT LIGHT Technology or the Intellectual Property Rights owned by BRIGHT LIGHT. The BRIGHT LIGHT name, the BRIGHT LIGHT logo, and the product names associated with the Service are trademarks of BRIGHT LIGHT or third parties, and no right or license is granted in this Agreement to use them. You alone (and your licensors, where applicable) shall own all right, title and interest, including all Intellectual Property Rights, in and to the Customer Data and all additions or modifications thereof. This Agreement does not convey to BRIGHT LIGHT any rights of ownership in or related to the Customer Data.
6. Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. BRIGHT LIGHT and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. BRIGHT LIGHT does not endorse any sites on the Internet that are linked through the Service. BRIGHT LIGHT provides these links to you only as a matter of convenience, and in no event shall BRIGHT LIGHT or its licensors be responsible for any content, products, or other materials on or available from such sites. BRIGHT LIGHT provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
7. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current number of total Licenses requested times the License fee currently in effect as set forth in the applicable Sales Order. Payments must be made annually in advance unless otherwise mutually agreed upon in a Sales Order. BRIGHT LIGHT provides a 30-day return policy after the invoice date. Return of hardware will be subject to a 20% restocking fee. Any fees associated with the installation of hardware is not refundable. After this 30-day period, all payment obligations are non-cancelable and all amounts paid are nonrefundable. You are responsible for paying for all Licenses ordered for the entire Term, whether or not such Licenses are actively used. You must provide BRIGHT LIGHT with valid credit card, company check or approved purchase order information as a condition to signing up for the Service. An authorized License Administrator may add Licenses by executing an additional written Sales Order. Added Licenses will be subject to the following: (i) added Licenses will be coterminous with the then-current Term; (ii) the License fee for the added Licenses will be the then-current, generally applicable License fee; and (iii) Licenses added in the middle of a billing month will be charged in full for that billing month. BRIGHT LIGHT reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by email. All pricing terms are confidential, and you agree not to disclose them to any third party.
8. Excess Data Storage Fees
The maximum disk storage space provided to you at no additional charge is 1 GB per license. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees. BRIGHT LIGHT will use reasonable efforts to notify you when the average storage used per User license reaches approximately 90% of the maximum; however, any failure by BRIGHT LIGHT to so notify you shall not affect your responsibility for such additional storage charges. BRIGHT LIGHT reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
9. Billing and Renewal
BRIGHT LIGHT charges and collects in advance for use of the Service. BRIGHT LIGHT will automatically renew and bill your credit card or issue an invoice to you each year on the subsequent anniversary or as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total Licenses times the License fee in effect during the prior term, unless BRIGHT LIGHT has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. BRIGHT LIGHT’s fees are exclusive of taxes. If you believe your bill is incorrect and wish to seek an adjustment or credit, you must contact BRIGHT LIGHT in writing within 30 days of the invoice date of the invoice containing the amount in question and provide reasonable supporting documentation concerning any disputed amount. If we cannot agree, then the parties must mediate the dispute before any lawsuit can be filed.
10. Non-Payment and Suspension
BRIGHT LIGHT reserves the right to suspend access to the Service immediately or terminate this Agreement as provided in Section 12 for failure to make invoice payments. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for Licenses during any period of suspension. If you or BRIGHT LIGHT initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that BRIGHT LIGHT may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. BRIGHT LIGHT reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service.
11. Termination upon Expiration/ Reduction in Number of Licenses
This Agreement shall commence on the Contract Start Date set forth on the initial attached Sales Order and shall end on the later of the (i) stated Contract End Date or the (ii) Order End Date as set forth on the initial or any superseding Sales Order (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at BRIGHT LIGHT’s then-current fees (the Initial Term and successive terms, if any, shall be referred to herein together as the “Term”). Either party may terminate this Agreement or reduce the number of Licenses, effective only upon the expiration of the then current Term, by notifying the other party in writing at least thirty (30) days prior to the date of the invoice for the following term. In the event this Agreement is terminated (other than by reason of your breach), BRIGHT LIGHT will make available to you a file of the Customer Data within 30 days of termination if you so request within 30 business days from the time of termination, after which time, it will be deleted.
12. Termination for Cause
Any breach of your undisputed payment obligations or unauthorized use of the BRIGHT LIGHT Technology or Service will be deemed a material breach of this Agreement. BRIGHT LIGHT, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement and you have failed to cure such alleged breach within ten (10) days (or, if the alleged breach may not reasonably be cured within ten (10) days, then for a reasonable period not exceeding thirty (30) days) after written notice specifying with sufficient detail the nature of the perceived breach. You agree and acknowledge that BRIGHT LIGHT has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay any undisputed outstanding fees, and such breach has not been cured within the applicable period set forth above.
13. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
If a third party makes a claim against either you or BRIGHT LIGHT (“Recipient” which may refer to you or BRIGHT LIGHT depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or BRIGHT LIGHT (“Provider” which may refer to you or BRIGHT LIGHT depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
- notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
- gives the Provider sole control of the defense and any settlement negotiations; and
- gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material.
If such return materially affects BRIGHT LIGHT’s ability to meet its obligations under the relevant order, then BRIGHT LIGHT may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the service (e.g., a third party Web page accessed via a hyperlink).
BRIGHT LIGHT will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by BRIGHT LIGHT. BRIGHT LIGHT will not indemnify you for infringement caused by your actions against any third party if the services as delivered to you and used in accordance with the terms of the agreement would not otherwise infringe any third party intellectual property rights. BRIGHT LIGHT will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of the agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.
15. Disclaimer of Warranties
BRIGHT LIGHT and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the service or any content. BRIGHT LIGHT and its licensors do not represent or warrant that (a) the use of the service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the service will meet your requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your requirements or expectations, (e) errors or defects will be corrected, or (f) the service or the server(s) that make the service available are free of viruses or other harmful components. The service and all content is 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.
16. Internet Delays
BRIGHT LIGHT’s services may be negatively impacted and subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. BRIGHT LIGHT is not responsible for any delays, delivery failures, or other damage resulting from such problems.
17. Limitation of Liability
In no event shall BRIGHT LIGHT’s or its licensors’ liability exceed the amounts actually paid by and/or due from you in the twelve (12) month period immediately preceding the event giving rise to such claim. In no event shall either party and/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 this agreement, including but not limited to the use or inability to use the service, or for any content obtained from or through the service, any interruption, inaccuracy, error or omission, regardless of cause in the content, even if the party from which damages are being sought or such party’s licensors have been previously advised of the possibility of such damages.
BRIGHT LIGHT may give notice for issues and matters that affect all of its customers by means of a general notice on the Service. For notices specific to you, BRIGHT LIGHT will give notice by (i) electronic mail to your e-mail address on record in BRIGHT LIGHT’s account information, or (ii) written communication sent by pre-paid first class mail or overnight delivery service to your address on record in BRIGHT LIGHT’s account information.
You may give notice to BRIGHT LIGHT at any time by any of the following: letter sent by confirmed facsimile to BRIGHT LIGHT at the following fax number: (808) 521-3000; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to BRIGHT LIGHT at the following addresses: Bright Light Digital, 2800 Woodlawn Drive, Suite 101, Honolulu, Hawaii 96822; addressed to the attention of: President/CEO.
19. Modification to Terms
This Agreement may only be modified in a writing signed by BRIGHT LIGHT and you.
20. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of BRIGHT LIGHT but may be assigned without your consent by BRIGHT LIGHT to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of BRIGHT LIGHT directly or indirectly owning or controlling 50% or more of you shall entitle BRIGHT LIGHT to terminate this Agreement for cause immediately upon written notice.
This Agreement shall be governed by Hawaii law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Hawaii. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and BRIGHT LIGHT as a result of this agreement or use of the Service. The failure of BRIGHT LIGHT to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by BRIGHT LIGHT in writing. This Agreement, together with any applicable Sales Order, comprises the entire agreement between you and BRIGHT LIGHT and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein, including, without limitation, any quotes or proposals submitted to you by BRIGHT LIGHT.
As used in this Agreement and in any Sales Order now or hereafter associated herewith:
“Agreement” means this Subscription Agreement, any Sales Order now or hereafter associated with this Agreement, and BRIGHT LIGHT’s privacy and security policies posted at www.brightlight.biz;
“Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;
“Customer Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service;
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
“License” means the right granted in Section 1 herein by BRIGHT LIGHT to use the BRIGHT LIGHT software on one media player.
“License Administrator(s)” means those Users designated by you who are authorized to purchase Licenses by executing written Sales Order and to otherwise administer your use of the Service;
“Sales Order(s)” means the executed sales order form evidencing the initial subscription for the Service and any subsequent order forms submitted specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Sales Order to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Sales Order, the terms of this Agreement shall prevail);
“BRIGHT LIGHT Technology” means all of BRIGHT LIGHT’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by BRIGHT LIGHT in providing the Service;
“Service(s)” means the BRIGHT LIGHT online digital signage service identified during the ordering process, developed, operated, and maintained by BRIGHT LIGHT, accessible via www.brightlight.biz or another designated web site or IP address, or ancillary online or offline products and services provided to you by BRIGHT LIGHT, to which you are being granted access under this Agreement, including the BRIGHT LIGHT Technology and the Content;
“User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by BRIGHT LIGHT at your request).