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Date of Last Revision: January 18, 2022
In these Terms, You and Brightback are individually referred to as a "Party" and collectively as "Parties". You, as an individual, must be eighteen (18) years or older to access the Site and register for and use the Services.
When used in these Terms with the initial letters capitalized, in addition to the terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of You for access and use of the Services and Site.
Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby "control" (including, with correlative meaning, the terms "controlled by" and "under common control") means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
Applicable Data Protection Law: means all laws and regulations, including laws and regulations of the United States, European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under this Agreement.
Brightback API: means the application programming interface made available by Brightback to You solely to access the Services.
Confidential Information: means all information disclosed by one Party to the other Party which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information may also include information disclosed to a disclosing Party by third parties. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (b) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party; (c) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party’s files and records prior to the time of disclosure; (d) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving Party without the use of or reference to the Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession.
Data Processing Addendum: means Brightback’s data processing addendum available on the Site as updated periodically and which is incorporated into this Agreement by reference or a separate addendum that the Parties have executed in this regard, as the case may be, pursuant to which Brightback shall Process Personal Data forming part of the Service Data.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services provided or made available by Brightback to You or Users through the Services or otherwise.
End-User: means Your customers and/or any person or entity other than You or Users with whom You interact using the Services.
Personal Data: means data forming part of the Service Data and relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into the possession of the data controller or such other similar term as defined under Applicable Data Protection Law.
Process/Processing: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Services: means the services ordered by You through a Service Order and provided by means of access to certain content and use of the features and functionality of software applications available and accessible within the Site, solely to the extent set forth and further described in, and as limited by, the Service Order(s) executed by the Parties.
Service Data: means all electronic data, text, messages or other materials, including Personal Data of End-Users and Users, submitted to the Services through an Account in connection with Your use of the Services.
Service Order: means a pricing agreement or an order form referencing these Terms and executed or approved by You and Brightback with respect to Your use of the Services, which agreement may detail, among other things, the plan applicable to a Subscription, the associated Service Subscription Fees and other details of the Subscription.
Subscription: means Your subscription to the Services for Your access and use of an Account.
User(s): means those individuals who are authorized by You as users under Your Subscription to use the Services.
2. Description of the Service. This TOS covers Your use of and access to the Services provided by Brightback, including without limitation, templates, experiences, integrations and features on the Site and associated domains of https://brightback.com and on Brightback-supported sites.
3. Access and Restrictions.
3.1. Subject to Your compliance with all the terms and conditions of this TOS, including any payment obligations, Brightback grants to You a non-exclusive, non-transferable, non-assignable (except to the extent expressly permitted by Section 17.4 (Assignment)), worldwide (subject to applicable law) and revocable right to access and use the features and functions of the Service only as intended for Your internal business purposes during the term of Your subscription for the Service. Brightback hereby further grants to You a limited non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable license to access and use Brightback API.
3.2. In order to access certain features and functions of the Service, You will be required to create an Account. Each employee or contractor of Yours who has access to the Service must also create an Account. You may not share individual login credentials for the Service, and You will ensure that each User has separate login credentials. You must at all times provide Brightback with true, accurate, and correct information, especially at the time of registration and Account creation. You may not misrepresent Your affiliation with a person or entity.
3.3. You agree to use the Services in accordance with these Terms (including any addendum, schedules and exhibits). Further, You agree, on behalf of Yourself and Users, not to (a) use the Services or permit the Services to be used to perform any churn mitigation or related services for any third party, or otherwise license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than Users in furtherance of Your internal business purposes as expressly permitted under these Terms; (b) modify, adapt, or hack the Services or otherwise attempt to gain or gain unauthorized access to the Services or related systems or networks or tamper with or breach the security of the Services; (c) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (d) not use or permit the use of any software, hardware, application or process that interferes with the Services, interferes with or disrupts servers, systems or networks connected to the Services, or violates the regulations, policies or procedures of such servers, systems or networks, accesses or attempts to access Brightback’s other customers' accounts, servers, systems or networks without authorization, or harasses or interferes with Brightback’s other customers' use and enjoyment of the Services; (e) attempt to decipher, decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover or attempt to derive the source code or underlying program of any software making up the Services; (f) falsely imply any sponsorship or association with Brightback; (g) use the Services in any unlawful manner, including but not limited to violation of any person's privacy rights; (h) use the Services to send unsolicited communications junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (i) use the Services to store or transmit any content that infringes upon any person's intellectual property rights; (j) remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on the Services or the Site, or add any other markings or notices to the Services or the Site; (k) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory or promotes any financial exploitation or a criminal activity; (l) modify, port, adapt, translate or create any derivative work based upon the Services or the Site; (m) use the Services to store or transmit any "protected health information" as that term is defined in 45 C.F.R. 160.103 unless expressly agreed to otherwise in writing by Brightback; (n) use the Services to knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, worms or cancelbots or any other similar harmful software ("Malicious Software"); (o) establish a link to the Site in such a way as to suggest any form of association, approval or endorsement on Brightback’s part where none exists; (p) use the Services for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, or sending electronic communications (including e-mail) in violation of applicable law; (q) use of the Services for any purpose prohibited by applicable export laws and regulations, including without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology or related to the sale of controlled substances such as illegal drugs, tobacco products, prescription drugs or medications, steroids such as human growth hormone; (r) try to use, or use the Services in violation of these Terms and/or applicable law. Neither You nor any of Your Affiliates shall access or use the Services or Site if such individual or entity is Brightback’s competitor. You and Your Affiliates shall not access or use the Services or Site to evaluate its functionality or performance for competitive purposes, including for developing any similar application, product or service. Further, at Brightback’s sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities.
3.4. You will comply with this TOS, the Data Protection Agreement, any Service Order(s), and any Documentation relating to the Services that is provided by Brightback to You in writing. You may not exceed the scope of Your authorized use of the Service.
3.5. You understand and agree that Your websites and/or services (“Your Sites”) and End-Users are Your responsibility, and You are solely responsible for compliance with any laws or regulations related to Your Sites and/or End-Users. Brightback is not and will not be liable for, and will not provide You with any legal advice regarding, Your Sites or End-Users. The foregoing does not limit or affect any liability Brightback may have to You separately for any breach of the other provisions of these Terms.
3.6. You will not use the Service to (or assist another person to) email or otherwise upload any content that (a) infringes or misappropriates any intellectual property or other proprietary or privacy rights of any party; (b) You do not have a right to upload under any law or under contractual or fiduciary relationships; (c) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, hateful racially, ethnically or otherwise objectionable; or (f) in the sole judgment of Brightback, which may expose Brightback or its users to any harm or liability of any type.
4.1. You will be responsible for payment of the applicable fee for any Service (each, a “Service Subscription Fee”) at the time You create Your Account and select Your Subscription plan (each, a “Service Start Date”). Except as set forth in a Service Order, all fees for the Service are non-refundable. No contract will exist between You and Brightback for the Service until Brightback accepts Your order by an online purchase made using a credit card, or by a Service Order signed by both Parties.
4.2. Brightback’s fees are net of any applicable Sales Tax (as defined below). If any Service, or payments for any Service, under the TOS are subject to Sales Tax in any jurisdiction and You have not remitted the applicable Sales Tax to Brightback, You will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and You will indemnify Brightback for any liability or expense Brightback may incur in connection with such Sales Taxes. Upon our request, You will provide Brightback with official receipts issued by the appropriate taxing authority, or other such evidence that You have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Brightback is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
4.3. Your Subscription will continue for the period set forth on the applicable Service Order, and following expiration of such period, may renew on the terms and conditions set forth on such Service Order (such renewal date referred to here as the “Renewal Date”), if any, at Brightback’s then-current price for such subscription. If You notify Brightback that You intend to cancel Your Subscription in accordance with the terms of this TOS and the applicable Service Order, You may use Your Subscription until the end of Your then-current Subscription term; Your Subscription will not be renewed after Your then-current term expires. However, You will not be eligible for a prorated refund of any portion of the Service Subscription Fee paid for the then-current Subscription period. By subscribing, You agree to pay to Brightback the Service Subscription Fee and any other fees set forth on the applicable Service Order(s). Upon renewal of Your Subscription, if Brightback does not receive payment from Your payment provider, (a) You agree to pay all amounts due on Your Account upon demand, and/or (b) You agree that Brightback may either terminate or suspend Your Subscription and continue to attempt to charge Your payment provider until payment is received (upon receipt of payment, Your Account will be reactivated and Your Subscription commitment period will begin effective the Renewal Date).
4.4. You represent and warrant to Brightback that any payment and billing information provided hereunder is, and will be maintained as, true, complete, accurate, and up to date, and that You are authorized to use such payment instrument.
4.5. All fees may be changed by Brightback at any time and such increased fee amount will be notified to You and applicable in the following billing cycle (or such other future time notified to You by Brightback). Brightback may charge fees for features of the Service that were previously free. Unpaid trial use of the Service is subject to limitations, as may be described in Documentation or otherwise on the Site.
5. Intellectual Property Rights.
5.1. Ownership. All right, title and interest in and to all of Brightback’s patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and other intellectual property and/or proprietary rights in or related to the Services, including the Site, and any part of it (collectively, the "Brightback Intellectual Property Rights''), are owned or licensed by and shall remain exclusively with Brightback and/or its Sub-processors. Brightback is the owner or the licensee of all Brightback Intellectual Property Rights in the Site and Services, and the content or material published on it. Those works are protected by copyright laws and treaties around the world. You must not use any part of the content on the Site or in the Services for commercial purposes without obtaining appropriate licenses. Subject to the limited rights expressly granted by Brightback to You in Section 3 (Access & Restrictions) of these Terms, You do not have any right, title to or interest in the Brightback Intellectual Property Rights. By using the Services, You grant Brightback a limited license to access, disclose, process, transmit and use the Service Data for providing the Services to You and for complying with these Terms. Brightback claims no intellectual property rights over the Service Data. All rights not expressly granted to You in these Terms are reserved by Brightback and/or the Sub-processors. You may not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm, or methodology to access, acquire, copy, or monitor the Service.
5.2. Grant of License to Us. You may choose or Brightback may invite You to submit suggestions, recommendations, enhancement requests or other feedback about the Services ("Feedback"). By submitting any Feedback, You agree that such Feedback is gratuitous, unsolicited and without restriction, and You grant Brightback a fully paid up, royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate Feedback, in whole or in part, into the Services or Site. Further, unless You notify Brightback otherwise via e-mail to firstname.lastname@example.org, You grant Brightback a fully paid up, royalty-free, worldwide, transferable license to use Your name and logo to identify You as Brightback’s customer on the Site or in other sales or marketing materials, provided however, Brightback will not issue any press release without Your prior consent.
6. Your User Content and Personal Data.
6.1. Your Content Stays Yours. You may provide Brightback with text, photos, images, audio, video, code and other materials that will be used by the Services in connection with the End-User’s experience (“End-User Content"). For avoidance of doubt, “End-User Content” includes: (i) generalized cancel page text, laYouts, and images; and (ii) modal laYouts, images, headlines, button text, and similar information. “End-User Content” does not include any information or Personal Data submitted by, or regarding, any End-User. End-User Content remains Yours, except for the limited rights that enable Brightback to provide, improve, promote and protect the Services as described in these Terms. You are solely responsible for all End-User Content that You upload, post, deliver, publish, provide or otherwise link, transmit or store in connection with or relating to the Service, including any personal information of Your customers and End-Users. You understand that the operation of the Service, including End-User Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices; (c) transmission to Brightbacks’ third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service and (d) transmission to certain Third-Party Services (as defined in below). Accordingly, You acknowledge that You bear sole responsibility for adequate security, protection and backup of End-User Content. Brightback will have no liability to You for any unauthorized access or use of any of End-User Content, or any corruption, deletion, destruction or loss of any of End-User Content.
6.2. Your License To Us. While You retain ownership of End-User Content, by posting End-User Content on or through the Service, You hereby grant and agree to grant Brightback a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, non-transferable license for the limited purposes of allowing Brightback to provide, improve and protect the Services. This Section does not affect any rights You may have under Applicable Data Protection Laws.
7. Data Security & Privacy
7.1. Security of Service Data. Brightback uses appropriate technical and organizational measures to protect the Service Data. The measures used are designed to provide a level of security appropriate to the risk of Processing the Service Data.
7.2. Data Privacy.
7.2.1. You understand that the Brightback, its Affiliates and Sub-processors shall Process Service Data in accordance with Applicable Data Protection Laws and the Data Processing Addendum. You acknowledge and agree that the Brightback, its Affiliates and Sub-processors may also access or disclose information about You, Your Subscription and Account, Users and End-Users, including Service Data, to (a) provide the Services and perform its obligations under these Terms, including, without limitation, to respond to Your support requests; (b) comply with the law or respond to lawful requests or legal process; (c) professionals and advisors in order to protect Brightback, its Affiliates or Brightback’s customers’ or partners’ rights or property; (d) act on a good faith belief that such disclosure is necessary to protect the personal safety or avoid violation of applicable law or regulation.
7.2.2. Brightback Processes Service Data only as per Your instructions to the extent they are consistent with the functionality of the Services. For purposes of the GDPR and the Swiss Federal Act on Data Protection, Brightback is the processor and not the controller of the Service Data. Between the Parties, You are the “controller” of that data and are responsible for compliance with the Applicable Data Protection Laws.
7.2.3. In its role as a controller of Personal Data, (a) You hereby authorize, on behalf of Yourself and Your Users and End-Users, and represent that You have the authority to provide such authorization to the Processing and transfer of Personal Data in and to the United States and other countries which may have different privacy laws from Your country of establishment/residence; (b) You understand that it shall be Your responsibility to inform the Users and End-Users about the Processing, and, where required, obtain necessary consent or authorization for any Personal Data that is collected as part of the Service Data through Your use of the Services. Brightback does not own, control or direct the use of Service Data and only accesses such information as reasonably necessary to provide the Services (including to respond to support requests), as otherwise authorized by You or as required by law. Unless Brightback explicitly agrees otherwise in writing, You shall not provide Sensitive Data at any time to the Services and Brightback will have no liability whatsoever for and in connection with the Sensitive Data. For purposes of this Agreement, “Sensitive Data” means (i) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof), (ii) employment, financial, genetic, biometric or health information, (iii) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation, (iv) account passwords, (v) date of birth, (vi) criminal history, (vii) mother’s maiden name or (viii) any other information or combinations of information that is deemed sensitive under the legal framework of any applicable jurisdiction.
8.1. The access, disclosure and use of Confidential Information and any other rights and obligations regarding such information shall be solely and exclusively governed by these Terms. The provisions of this Section 8 (Confidentiality) shall supersede any non-disclosure agreement between the Parties entered prior to these Terms that would purport to address the confidentiality of Confidential Information and such agreement shall have no further force or effect with respect to Confidential Information. All confidentiality obligations shall remain in force and effect for the Term plus one (1) year.
8.2. You or Brightback (the "Disclosing Party") may from time to time, while Your Subscriptions are valid, disclose to the other Party (the "Receiving Party") the Disclosing Party's Confidential Information. For purposes of these Terms, Your Confidential Information includes Service Data, and Brightback Confidential Information includes the Services, Documentation and the contents of any Service Order. The Receiving Party agrees to protect the Disclosing Party's Confidential Information from unauthorized access, disclosure or use in the same manner that the Receiving Party protects its own confidential or proprietary information of a similar nature but with no less than reasonable care. The Receiving Party will only access and use the Disclosing Party's Confidential Information in connection with performing these Terms (or as expressly authorized by the Disclosing Party in writing), and will disclose the Disclosing Party's Confidential Information only to the employees and contractors of the Receiving Party who have a need to know the Confidential Information for purposes of performing these Terms (or for other purposes as expressly authorized by the Disclosing Party in writing) and who are under a duty of confidentiality no less restrictive than the Receiving Party's duty hereunder.
8.3. The Receiving Party's obligations with respect to Confidential Information of the Disclosing Party will terminate if the Receiving Party can document that such information (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party free from any obligation of confidence, (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions, (c) is, or through no fault of the Receiving Party has become, generally available to the public or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party's Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or a court or other judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such compelled disclosure promptly and in writing (to the extent legally permitted) and cooperates with the Disclosing Party, at the Disclosing Party's reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
8.4. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party's possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party. At the Disclosing Party's request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section 8 (Confidentiality).
9. Account Activity, Security and Monitoring.
9.1. You are solely responsible for:
9.1.1. Your (including Your Users’ and End-Users’) access and use of the Services in compliance with these Terms;
9.1.2. without prejudice to Brightback’s obligations under Section 7 (Data Privacy and Security) and Section 8 (Confidentiality), maintaining the confidentiality of unique login information, credentials and passwords associated with Your Account, and the privacy and security of Your Account;
9.1.3. ensuring that Your use of the Services to store, process and transmit Service Data is compliant with applicable laws and regulations;
9.1.4. any sum of amount that is due to You relating to transactions that are processed through any payment gateways, merchant account providers or payment processors that You utilize in connection with the Services;
9.1.5. all activities that occur regarding Your Account regardless of whether the activities are undertaken by You, Users, End-Users or a third party (including its contractors or agents);
9.1.6. immediately ceasing use of the Services for a prohibited activity or purpose if Brightback informs You that a specified activity or purpose is prohibited with respect to the Services;
9.1.7. determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes;
9.1.8. promptly notifying Brightback if You learn of a security breach related to the Service, including the compromise or loss of any of Your login credentials.
9.2. Brightback reserves the right to access Your Account in order to respond to Your requests for technical support or to ensure proper functioning of the Service. For the avoidance of doubt, Brightback has the right, but not the obligation, to monitor the Service, Service Data, or End-User Content. Brightback will do so if required by law or in the good faith belief that such action is necessary to protect Brightback, the Service, or other users of the Service.
10.1. You agree to comply with all applicable rules and regulations, and local, state, national or international laws in connection with Your access and use of the Service, including Applicable Data Protection Laws.
10.2. You are responsible for ensuring that Your use of the Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards requirements and will ensure that You do not store credit card and social security data in the Service. You specifically acknowledge and agree that: (a) Brightback is not acting on Your behalf as a Business Associate or subcontractor (as such terms are used, defined, or described in the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”)); (b) the Service is not HIPAA-compliant; and (c) You may not use the Service in any manner that would require Brightback or the Service to be HIPAA-compliant.
10.3. Export Controls and Sanctions Compliance. You acknowledge that the Services (including the software and other components) may be controlled by the laws of one or more countries governing technology use and transfer, including U.S. Export Administration Regulations, and agrees that any use or transfer contrary to such laws is prohibited. You are not, and are not acting on behalf of, (a) any person or entity who is a citizen, national or resident of, or who is controlled by the government of, any country to which the United States or any European government has prohibited transactions, or (b) any person or entity listed on any denied persons or entities list maintained by the United States or any European governments, including the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons and the U.S. Commerce Department Denied Persons List or Entity List. You and Your Users agree not to access, use or transfer the Services, including any technology or data, in violation of such laws and regulations.
10.4. U.S. Government End-Users. If You are the U.S. government (including any department or agency) or contracting on the U.S. government’s behalf, then the Services (including the software and other components) are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to these Terms. All unpublished rights are reserved under the copyright laws of the United States. The contractor/manufacturer is CHARGEBEE INC., 340 S Lemon Avenue, #1537, Walnut, California 91789, United States.
10.5. Notwithstanding anything contained in these Terms to the contrary, Brightback, at its sole discretion, may immediately terminate Your access and use of the Services without prior written notice or an opportunity to cure in the event of an actual or threatened breach of Section 10 (Compliance).
11. Sub-Processors, Third-Party Content and Other Services.
11.1. Sub-processors. Certain third parties (each, a “Sub-processor”) may assist Brightback in providing the Services by delivering their products and/or services as part of the Services. Brightback contracts directly with the Sub-processors for the provision of their products and/or services, which are integrated with or are an integral part of the Services. The products and services provided by the Sub-processors do not include any of the Other Services.
11.2. Other Services. Certain other services (“Other Services”) such as integrations and apps may be made available to You for integration with the Services. These Other Services are governed by their own terms and privacy policies and You agree that Brightback is not responsible for Your use of these Other Services where You choose to enable these Other Services and integrate them into the Services. By enabling the Other Services, You understand and agree that Brightback does not provide any warranties for Other Services and Brightback is not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You understand that Brightback is not responsible for providing technical support for Other Services or for the data hosting and data transfer practices followed by providers of such Other Services. To this extent, You agree to address any comments, queries, complaints or feedback about such Other Services with the respective developers or publishers as specified in those forums.
11.4. Mobile Services. The Service may include certain services that are available via a mobile device, including the ability to view and modify reports in the Service via a mobile device, and the ability to browse the Service and the Site from a mobile device (collectively, the “Mobile Services”). To the extent You access the Service through a mobile device, Your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by Your carrier, and not all Mobile Services may work with all carriers or devices.
12. Term, Termination & Suspension.
12.1.1. These Terms shall be valid from the Start Date until terminated by either Party for a material breach of these Terms where such material breach has not been cured within thirty (30) days (“Cure Period”) of notice by the aggrieved Party to the defaulting Party; and where the aggrieved Party reasonably believes a material breach cannot be cured, the Agreement may be terminated with immediate effect.
12.1.2. Notwithstanding anything contained herein, either Party may terminate this Agreement without notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies which are dismissed within sixty (60) days), or has a receiver or trustee appointed for substantially all of its property.
12.1.3. Unless otherwise agreed between the Parties, (a) termination of these Terms shall mean automatic termination of all Subscriptions associated with these Terms; (b) these Terms shall automatically terminate when all associated Subscriptions expire or are terminated and Your payment obligations thereunder are met to Brightback’s satisfaction.
12.2. Term of Subscription. Unless otherwise contained in the Service Order, a Subscription is valid for a period of twelve (12) months from the ‘Start Date’ set forth in a Service Order (“Initial Term”) and shall renew automatically for a term equivalent in length to the then expiring term (“Renewal Term”) unless terminated earlier by either Party in accordance with this Agreement. For the purposes of these Terms, “Term” shall mean the Initial Term and any Renewal Terms.
12.3. Suspension and Termination of Subscription.
12.3.1. Customer may terminate a Service Order for any reason by providing written notice of termination to Brightback within ninety (90) days from the Start Date (as defined in the applicable Service Order). To discontinue renewal of a Subscription, either Party may terminate the Subscription ninety (90) days prior to the expiry of the subsisting Term by written notice to the other Party (a “Pre-Renewal Termination”). For avoidance of doubt, such a termination will not have any effect on the subsisting Term and associated payment obligations.
12.3.2. In the event of any actual or threatened breach of these Terms by You (including non-payment of Service Subscription Fees), Brightback may immediately suspend all or part of Your Subscription(s). Brightback may terminate these Terms, including the Subscription(s), if You have breached any provision of these Terms and if that breach can be cured, You fail to cure that breach within the Cure Period. Unless waived by Brightback in writing or where the total Service Subscription Fees have already been prepaid, if a Subscription is terminated in accordance with this Section 12.3.2., in addition to other amounts You may owe Brightback, You must immediately pay the Remaining Service Subscription Fees. Brightback will use good faith efforts to provide reasonable notice to You prior to suspension or termination of Your Account by Brightback.
12.3.3. Where You terminate a Subscription as a result of a material breach of these Terms by Brightback, (provided that You provide notice of such breach to Brightback and afford Brightback not less than the Cure Period to reasonably cure such breach), You are not expected to pay the Remaining Service Subscription Fees or if You have prepaid the total Service Subscription Fees, You may be eligible for a refund of the unused Service Subscription Fees for Services not rendered from the date of such termination. For the purposes of this Agreement, “Remaining Service Subscription Fees” means an amount equal to the number of whole months remaining in the Term at the time of termination multiplied by the highest Service Subscription Fees for the Services earned by Brightback in a calendar month during the Term.
12.3.4. Brightback shall not be liable to You or any other third party for suspension or termination of Your Subscription or access to and use of the Services, including any destruction of Service Data or End-User Content, if such suspension or termination is in accordance with these Terms. Upon any termination of a Subscription, all rights, including the right to access and use the Services granted to You will immediately cease. You must immediately destroy (or, at Brightback’s request, return) Brightback’s Confidential Information in Your possession or control.
13. Other Data Services.
13.1. Data Migration. You may, at any time during the Term, request Brightback to import data into its Account (“Data Migration”). You hereby understand and acknowledge that Brightback and its Affiliates may access and Process Your data in connection with providing support during such Data Migration.
13.2. Aggregated Analytical Data. Brightback, its Affiliates, and the service providers they use may aggregate, anonymize and analyze technical and other data regarding Your use of the Services that is non-personally identifiable with respect to You, Users and End-Users (“Aggregated Analytical Data”). Brightback, its Affiliates, and the service providers they use shall process and enrich the Aggregated Analytical Data in its systems to (i) provide, support, improve, enhance and operate the Services and its availability; (ii) develop new features, products and services; (iii) compile statistical reports and record insights into usage patterns; and (iv) perform its obligations under these Terms. Brightback will not identify You, Users or End-Users as the source of any Aggregated Analytical Data.
14. Disclaimer. THE SERVICE, INCLUDING THE SITE AND BRIGHTBACK’S CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND BRIGHTBACK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT BRIGHTBACK, ON BEHALF OF ITSELF, ITS AFFILIATES AND THE SUB-PROCESSORS, DOES NOT WARRANT THAT ACCESS TO THE SERVICES WHICH ARE PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND BRIGHTBACK’S CONTROL, WILL BE ERROR-FREE, UNINTERRUPTED, TIMELY, SECURE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, WILL MEET YOUR QUALITY AND PERFORMANCE REQUIREMENTS, OR WILL BE CORRECTED FOR ANY DEFECTS WITHIN A STIPULATED PERIOD. BRIGHTBACK DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ‘OTHER SERVICES’ (INCLUDING ANY PAYMENT GATEWAY SERVICE PROVIDER) OR ‘THIRD-PARTY CONTENT’. NOTWITHSTANDING ANY SECURITY OR OTHER MEASURE THAT MAY BE PROVIDED BY BRIGHTBACK, YOU ASSUME THE ENTIRE RISK OF AND SHALL NOT HOLD BRIGHTBACK RESPONSIBLE FOR ANY ALTERATION, COMPROMISE, CORRUPTION OR LOSS OF SERVICE DATA OR END-USER CONTENT, EXCEPT TO THE EXTENT CAUSED BY BRIGHTBACK’S WILLFUL BREACH OF THESE TERMS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT BRIGHTBACK (I) IS NOT A BANK OR OTHER CHARTERED DEPOSITORY INSTITUTION; AND (II) WILL NOT HOLD ANY SUM OF AMOUNT FOR YOU AND/OR END-USERS. ACCORDINGLY, YOU AGREE THAT BRIGHTBACK WILL NOT BE RESPONSIBLE FOR ANY AMOUNTS RELATED TO ANY CREDIT CARD OR PAYMENT TRANSACTION. NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM BRIGHTBACK OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
15. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, ITS RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS OR SERVICE PROVIDERS (AND, WITH RESPECT TO BRIGHTBACK, THE SUB-PROCESSORS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, COVER, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY), HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR EITHER PARTY’S MISAPPROPRIATION OF INTELLECTUAL PROPERTY, THE AGGREGATE LIABILITY OF EACH PARTY, ITS RESPECTIVE AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS, AND SERVICE PROVIDERS (AND, WITH RESPECT TO BRIGHTBACK, THE SUB-PROCESSORS) RELATING TO THE SERVICES, USE THEREOF AND THIS AGREEMENT SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE SUBSCRIPTION FEES PAID OR PAYABLE BY YOU IN THE SIX (6) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, IN CONNECTION WITH THE SUBSCRIPTION TO WHICH THE CLAIM RELATES. FOR CLARITY, THE ABOVE LIMITATIONS SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS TO BRIGHTBACK FOR THE SERVICES. NO CLAIM MAY BE PURSUED BY YOU MORE THAN ONE (1) YEAR AFTER THE FACTS GIVING RISE TO SUCH CLAIM HAVE ARISEN.
IN JURISDICTIONS WHICH DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
THIS LIABILITY LIMITATION FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
16.1. If Brightback reasonably believes that Your use of the Services is likely to be enjoined, or if the Services are held to infringe a valid United States patent, copyright or trademark and all use of such Services by You is thereby enjoined, Brightback shall, at its expense and sole option, (a) procure for You the right to continue using the Services as set forth hereunder, (b) replace the Services with other non-infringing services or software of substantially equivalent functionality or (c) modify the Services so that there is no infringement, provided that such modified services or software provides substantially equivalent functionality. If, in Brightback’s reasonable opinion, the remedies above are infeasible or commercially impracticable, Brightback may, at its sole discretion, terminate these Terms.
16.2. Subject to Your compliance with these Terms, Brightback shall, if notified promptly in writing and given authority, control, information and assistance at its expense for defense and settlement of same, defend You against any third party action, suit or proceeding brought against You so far as it is based on a claim that the use of the Services infringes a United States patent, copyright or trademark, and shall indemnify and hold You harmless for (a) all reasonable attorneys’ fees, and court or tribunal costs incurred by Brightback with respect to defense and settlement of such third party claim, (b) any judgments, fines, costs and penalties awarded by any court or tribunal against Brightback and/or its customers, including You, for such third party claim and (c) any amounts paid in settlement of such third party claim as mutually agreed by Brightback and the third party in such claim. Brightback will have no liability or obligation with respect to any third party claim if such claim is caused in whole or in part by (i) modification of the Services by anyone other than Brightback; (ii) the combination, operation or use of the Services with any other software, hardware, application or process where the Services would not by themselves be infringing; (iii) compliance with designs, data, materials, instructions or specifications provided by You; (iv) use of the Services by You and/or Users in violation of this Agreement; or (v) any ‘Other Services’ and/or ‘Third-Party Content’.
16.3. SECTIONS 16.1 AND 16.2 (Indemnification) SET FORTH YOUR SOLE AND EXCLUSIVE REMEDY AND BRIGHTBACK’S SOLE, EXCLUSIVE AND ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF INTELLECTUAL PROPERTY RIGHTS. You agree that in no event shall You settle any matter without the prior written approval of Brightback.
16.4. Indemnification by You. You will indemnify and hold Brightback and/or its Affiliates harmless against any claim brought by a third party against Brightback and/or its Affiliates, and its respective employees, officers, directors and agents arising from or related to use of the Services by You in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that (a) Brightback notifies You of the threat or notice of such claim; (b) You have or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such claim; and (c) Brightback reasonably cooperates with You at Your expense in connection therewith. Notwithstanding the foregoing, Brightback may participate in the defense of any matter with counsel of its own choosing at its cost and expense, and You will not settle any matter without Brightback’s prior written consent, unless the settlement fully and unconditionally releases Brightback and/or its Affiliates and does not require Brightback and/or its Affiliates to pay any amount, take any action or admit any liability.
17.1. Parties. The Parties are independent contractors. Nothing in these Terms shall be deemed to constitute a partnership, joint venture, employment or franchise between the Parties, nor constitute any Party as the agent of the other Party for any purpose or entitle any Party to commit or bind the other Party in any manner.
17.2. Entire Agreement and Revisions. These Terms, including the Data Protection Addendum, Exhibits and Service Order(s), constitute the entire agreement, and supersede all prior or contemporaneous, written or oral understandings, communications or agreements between the Parties regarding such subject matter, including any click-wrap terms. Any use of Your pre-printed forms, such as purchase orders, are for convenience only, and any pre-printed terms and conditions set forth in Your printed forms that are in addition to, inconsistent or in conflict with, or different than these Terms shall be null and void. Neither commencement of performance, nor failure to object to any additional or different terms and conditions from You, nor provision of Services, by, in each case, Brightback or its Affiliates shall constitute an acceptance of any terms and conditions proposed by You that are in addition to, inconsistent or in conflict with, or different than these Terms. In the event of a conflict between any Service Order and these Terms, the Service Order shall prevail to the extent it is intended to. Brightback may change this TOS from time to time. If Brightback does this, Brightback will indicate at the top of this page the date these terms were last revised. If an amendment materially affects Your rights, Brightback will also use commercially reasonable efforts to notify You, either through the Service’s user interface, in an email notification to the email provided by You in connection with your Account, or through other reasonable means. Your continued use of the Services following the effective date of any such amendment may be relied upon by Brightback as Your acceptance of any such amendment. If You do not agree to an amendment, You may terminate Your use of the Services or request Brightback to terminate the provision of the Services to You.
17.3. Severability and Waiver. If any provision of these Terms is held to be unenforceable by a court of competent jurisdiction, the unenforceable provision shall be replaced by the court with an enforceable provision that comes closest to the Parties’ intent underlying the unenforceable provision, and the remaining provisions of these Terms shall remain in full force and effect. The unenforceability of any provision in any jurisdiction shall not affect the enforceability of such provision in any other jurisdiction. A Party’s non-exercise of any right herein does not constitute a waiver of that right or provision of these Terms.
17.4. Assignment. Brightback may assign or transfer all or any part of these Terms or its rights under these Terms or delegate the performance of its duties under these Terms in whole or in part to any of its Affiliates, or in connection with any acquisition, consolidation, merger, reorganization, transfer all or substantially all of its assets or other business combination, or by operation of law without Your consent and without providing notice. Brightback may subcontract its obligations hereunder, provided that Brightback shall at all times remain responsible for the performance of the subcontractor. You may assign or transfer these Terms, in whole, in connection with any acquisition, consolidation, merger, reorganization, transfer all or substantially all of Your assets or other business combination, or by operation of law without Brightback’s written consent, provided that such assignment or transfer is not in favour of a competitor of Brightback. You agree to provide Brightback notice of such assignment or transfer no later than its effectiveness and to not default in any of its payment obligations under these Terms. Subject to the foregoing, the Terms will bind and benefit the Parties and their respective successors and permitted assigns.
17.5. Third Party Beneficiaries. Except as expressly provided in the Terms, nothing in the Terms, express or implied, is intended to confer upon any party (other than the Parties hereto, their respective successors and permitted assigns and the Sub-processors) any rights or obligations, to enforce the Terms.
17.6. Governing Law. The Terms shall be governed by the laws of the State of Delaware, United States. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of Sussex County, Delaware, for the purpose of resolving any dispute relating to the Terms or Your access to or use of the Services. The Terms shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which are expressly excluded.
17.7. Arbitration. In the event of a dispute, claim or controversy arising out of or relating to the Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate (a “Dispute”), each Party will provide the other Party with written notice of the Dispute as soon as practicable, and the Parties agree to exercise commercially reasonable efforts to resolve the Dispute amicably through their designated officers. A Dispute that cannot be resolved within thirty (30) days following the discussions contemplated by the prior sentence will, upon written demand of either Party, be resolved exclusively by final and binding arbitration. Arbitration will be conducted exclusively in Sussex County, Delaware, United States by the Judicial Arbitration and Mediation Service (“JAMS”) pursuant to the Comprehensive Arbitration Rules and Procedures of JAMS then in effect. The arbitration will be conducted by three (3) arbitrators. The award rendered in the arbitration will be final and binding and may be enforced in any court of competent jurisdiction. Each Party shall have the right, at its election, to seek provisional injunctive or other equitable relief in aid or support of arbitration from the U.S. federal and state courts located in Sussex County, Delaware, United States to enforce the Terms, which remedy will not be exclusive. If any action is pursued to enforce or obtain compliance with the Terms, the prevailing Party shall be entitled to reasonable attorneys’ fees and costs, in addition to any other relief to which such Party may be entitled. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY. YOU AGREE THAT ANY PROCEEDINGS, INCLUDING ANY ARBITRATION, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
17.8. Force Majeure and Other Events. Brightback shall not be liable for inadequacy of or irregularity in the Services caused by (i) any circumstance beyond Brightback’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, technical failures (including failures in telecommunications, internet, internet service provider or hosting facilities, power shortages) or acts undertaken by third parties, including without limitation, denial of service attacks; (ii) sub optimal functionality, availability or downtime of Your payment gateway and/or ‘Other Services’; or (iii) Your, Users’ or End-Users’ use of the Services in an unauthorized, improper or unlawful manner; or for any misuse or modification or damage of the Services caused by You, Users or End-Users; or any breach of the Terms by You or Users (collectively, the “Force Majeure and Other Events”).
17.9. Anti-Corruption. You agree that it has neither been offered nor received any illegal or improper bribe, payment, kickback, gift, or thing of value from any of Brightback’s employees or agents in connection with these Terms. Reasonable gifts and entertainment provided in the ordinary course of business in accordance with applicable policies and laws do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Brightback.
17.10. Notices. All notices under these Terms may be delivered in writing by an internationally recognized overnight courier or U.S. mail to the mailing address provided by such Party, or by electronic mail to the e-mail address provided by such Party. The contact information for a notice to Brightback by courier or US mail is CHARGEBEE INC., 340 S. Lemon Avenue, Suite #1537, Walnut, California 91789, United States with a CC to email@example.com or firstname.lastname@example.org. All notices shall be deemed delivered upon receipt.
17.11. DMCA. If You believe that Your work has been copied in a way that constitutes copyright infringement, or that Your intellectual property rights have been otherwise violated, You should notify Brightback of Your claim in accordance with the procedure set forth below.
Brightback will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Brightback’s Copyright Agent at email@example.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail at:
Attn: Legal Department
340 S Lemon Avenue, #1537
Walnut, CA 91789
In accordance with the DMCA and other applicable law, Brightback has adopted a policy of terminating, in appropriate circumstances and at Brightbacks’ sole discretion, users who are deemed to be repeat infringers. Brightback may also at its sole discretion limit access to the Service and/or terminate the Account and/or Subscription of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
18.1. You or any of Your Affiliates shall be entitled to execute Service Order(s) with Brightback under these Terms.
18.2. Where You and Brightback are signatories to a Service Order, the Service Order forms part of these Terms between Brightback and You.
18.3. Where Your Affiliate and Brightback are signatories to a Service Order, the Service Order forms a separate contract between those signatories incorporating the terms (including the obligation to pay) of these Terms (amended mutatis mutandis). The terms and conditions of these Terms, when applied to that Service Order, shall, where the context permits, be interpreted as if references to “Brightback” or “You” (including to Brightback or You as a “Party”) are to Brightback or that Affiliate of Yours which is party to that Service Order. The Parties agree that in such cases, You shall have no claim against Brightback and only such Affiliate of Yours which is a signatory to the Service Order may bring claims against Brightback in connection with that Service Order and/or the Services.