BrightTALK Customer Agreement
(date of last revision: October 12th 2017)
BrightTALK provides marketing solutions based on webinars and videos for professionals and their communities. BrightTALK has agreed to provide certain such services to Customer as set out in a Statement of Work (“SOW”), subject to the terms and conditions of this Agreement. BY ACCEPTING A STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT.
1 SCOPE AND INTERPRETATION
This Customer Agreement (the “Agreement”) governs all Services provided by BrightTALK to Customer. In the event of any inconsistency or conflict between a term in this Agreement and a term in an SOW, the term in this Agreement shall take precedence, unless expressly stated otherwise in the relevant SOW. Terms beginning with capital letters used in this Agreement are defined in clause 14 and these shall apply both to this Agreement and to each SOW.
2 PERFORMANCE OF SERVICES
2.1 BrightTALK shall supply the Services specified in each SOW, subject to the terms of this Agreement. BrightTALK shall not be obliged to supply any services that are not specified in an SOW. Each party will use reasonable endeavors to meet any deadlines specified in the relevant SOW but, unless expressly specified to the contrary, it shall not be a condition of any SOW that any deadline is met.
2.3 BrightTALK may provide Customer with an Audience Program if specified in an SOW. In the event Customer has not received the full Audience Program specified in the SOW, Customer will be entitled to a credit equal in value to the Audience Program shortfall (the “Credit”). Such Credit may be used to offset future charges for any BrightTALK services, including subsequent Audience Program packages (but is not redeemable for cash or retroactive application).
3 FEES AND PAYMENT TERMS
3.1 Customer shall pay to BrightTALK the Fees specified in an SOW, and in clauses 3.2 to 3.5, and on the payment terms set out therein. Unless otherwise specified in an SOW, BrightTALK shall invoice annually in advance for recurring annual Fees, and payment is due within thirty (30) calendar days of the date of invoice. Unless otherwise specified in an SOW, Fees set out in that SOW are exclusive of any applicable sales taxes or other applicable taxes, duties or equivalent charges in relation to the Services and Customer agrees to pay all such taxes, duties or charges, if applicable, to BrightTALK in addition to the Fees themselves.
3.2 There will be no Capacity Charge provided that the aggregate number of minutes of viewing by Users of any webcast (including video uploads) published as Customer Content during a 12-month period does not exceed the Capacity Limit (600,000 minutes/twelve months). Customer shall pay the Capacity Charge for each minute of Customer Content viewed by Users above the Capacity Limit.
3.3 Any Services supplied by BrightTALK at the request of the Customer which are not specified in an SOW will be charged and/or invoiced at BrightTALK’s then standard time and materials rate or at the rate specified in a then current SOW for substantially similar Services, if applicable.
3.4 BrightTALK may charge Customer for all reasonable travel time, travel, accommodations and subsistence expenses incurred in providing any Services that are pre-approved by Customer in writing. Where reasonable, all such expenses will be estimated in advance in the relevant SOW.
3.5 If Customer is late in paying any invoices, then BrightTALK may, if it wishes to do so, charge interest after the due date on all unpaid amounts. Interest will be charged at a rate of four percent (4%) per year above the Rate for the applicable time.
4 INTELLECTUAL PROPERTY RIGHTS AND LICENSES
4.1 Ownership Rights
Each party retains any and all right, title and interest in and to its website(s), Intellectual Property, Customer Content (in the case of Customer), the Services (in the case of BrightTALK), and all components thereof. Under no circumstances will this Agreement be construed as granting, by implication, estoppel or otherwise, any license or other right in or to any Intellectual Property of either party or other property or components thereof, other than as specifically granted in this Agreement.
4.2 License to BrightTALK Services
Subject to the terms and conditions herein, in exchange for full payment of the applicable Fees, BrightTALK hereby grants Customer a limited, revocable, non-exclusive, non-transferable (except as provided for in section 13.1 herein), non-sublicensable, worldwide license to use the Services solely for the purposes described in this Agreement and the applicable SOW. All rights not expressly granted to Customer in this Agreement or the applicable SOW are reserved by BrightTALK and its licensors. Except as expressly permitted by BrightTALK, Customer shall not: (a) license, sublicense, sell, resell, rent, share, transfer or assign, the Services in any way; (b) reverse engineer, decompile, modify, translate, disassemble (except to the extent that this restriction is expressly prohibited by applicable law) or create derivative works based upon the Services, the underlying technology or any of BrightTALK’s Intellectual Property; (c) use any data mining, robots or similar data gathering or extraction methods; or (d) use any of the Services for any purposes other than for their intended purposes as set out in this Agreement or the applicable SOW. This license shall terminate automatically upon termination or expiration of the associated SOW.
4.3 License to Customer Content
Customer hereby grants BrightTALK a non-transferable (except as provided for in section 13.1 herein), royalty-free, non-exclusive, worldwide license to perform such acts in connection with Customer Content as is necessary to provide the Services and as described in an applicable SOW. The foregoing license includes, without limitation, permission for BrightTALK to: (a) aggregate, publicly display, distribute, modify (only upon Customer request), reproduce, and store Customer Content to provide the Services; (b) use Customer’s name and Customer’s webcast presenter’s name, voice, likeness, persona and performance in connection with any Customer Content; (c) offer, provide open access to, distribute, and transmit Customer Content on or through brighttalk.com (or other website wholly-owned and/or operated by BrightTALK) and/or sub-domains thereof or via such technologies as are or may in the future be supported by BrightTALK; and (d) embed and display Customer Content on third party websites, as requested by Customer. Such license shall apply with respect to any form, media, or technology now known or later developed. For the avoidance of doubt, the parties expressly agree and acknowledge that the Services do not include taking title to any of Customer Content. This license shall terminate automatically when Customer Content is deleted from BrightTALK’s production servers, except to the extent that: (i) BrightTALK is obliged by applicable law to retain a copy of any Customer Content, in which case this license will expire upon the expiry of that legal obligation; or (ii) BrightTALK reasonably needs to retain a copy of any Customer Content for the purpose of any actual or potential legal proceedings, in which case this license will expire upon the later of the final resolution of those proceedings or the expiry of the applicable limitation period. Customer may, at any time, request in writing that BrightTALK remove Customer Content from the BrightTALK production servers and BrightTALK agrees to remove such Customer Content within fifteen (15) business days. This obligation shall not prevent BrightTALK from retaining copies of the relevant Customer Content for the purposes of this clause 4.3.
4.4 License to Marks
Subject to the terms and conditions of this Agreement, Customer grants BrightTALK a non-transferable (except as provided in section 13.1 herein), non-exclusive, royalty-free right to reproduce and publicly display Customer logos, trademarks, trade names and other similar identifying material or Intellectual Property (the “Marks”) that Customer provides in any Customer Content to the extent necessary in connection with the Services. BrightTALK agrees not to alter the Marks or use the Marks apart from providing the Services as directed by Customer without Customer’s written consent. This license and all sublicenses thereto shall terminate automatically when all Customer Content is deleted from BrightTALK’s production servers.
5 REPRESENTATIONS AND WARRANTIES
5.1 Each party hereby represents and warrants to the other party that: (a) it has all necessary authority to enter into and perform its obligations under this Agreement without the consent of a third party or breach of any contract or agreement with any third party, and (b) all persons performing any obligations hereunder have entered into all necessary agreements in order for it to comply with the terms and conditions of this Agreement.
5.2 BrightTALK represents and warrants that the Services will be provided with reasonable care and skill and by means of appropriately qualified and skilled personnel in a professional and workmanlike manner.
5.3 Customer specifically represents and warrants that: (a) any Customer Content and its distribution and/or publication or other use, as envisaged in this Agreement or the applicable SOW, does not and shall not infringe or misappropriate any third party’s rights, including without limitation any Intellectual Property Rights; (b) Customer has obtained all necessary rights, permissions and authorizations in order to license the Customer Content as described herein, including rights in any stock images, for example, images owned by media companies such as Getty Images; and (c) any obligation to pay third party license fees as a result of distribution of Customer Content pursuant to this Agreement shall be Customer’s sole obligation. BrightTALK does not make any warranties regarding the validity of the Customer Content. In the event that BrightTALK becomes aware that Customer Content cannot be used as intended under this Agreement or the relevant SOW without infringing the rights of a third party or breaching applicable law, BrightTALK may, at its discretion, take down such Customer Content and BrightTALK agrees to provide notice to Customer of such take-down, to the extent permitted by applicable law.
5.4 BrightTALK reserves the right to take down any Customer Content if BrightTALK, in its sole reasonable discretion believes: (a) use or publication of such Customer Content is unlawful; (b) use or publication of such Customer Content is or may be directly or indirectly harmful to Users, to BrightTALK or its subsidiaries, affiliates or to other third parties; or (c) for any conduct by Customer that violates this Agreement, any applicable laws or regulations, and BrightTALK agrees to provide notice to Customer of such take-down, to the extent permitted by applicable law.
6 TERM AND TERMINATION
6.1 This Agreement commences on the date it is accepted by Customer by the execution of an SOW, and shall continue in full force and effect until all SOWs executed in accordance with this Agreement have either expired or been terminated.
6.2 Unless stated otherwise in a SOW, each SOW has an initial term of twelve (12) months starting on the date of acceptance by both parties (the “Initial Term”). Upon expiration of the Initial Term and each subsequent term, each SOW will automatically renew for successive renewal terms of twelve (12) months unless either party terminates by providing written notice to the other at least thirty (30) calendar days prior to the end of the previous term.
6.3 Either party may terminate this Agreement if: (a) the other party commits a material breach of this Agreement and such breach is not cured within thirty (30) days of receipt of notice from the non-breaching party; (b) the other party commits a material breach of this Agreement that is incapable of remedy; or (c) the other party becomes insolvent, bankrupt, liquidated or is dissolved or ceases substantially all of it business.
7.1 BrightTALK shall keep confidential any confidential information which Customer supplies to BrightTALK in connection with this Agreement or with an SOW and Customer agrees to do the same in relation to any confidential information which BrightTALK supplies to Customer. Subject to clause 7.4, confidential information will include SOWs, this Agreement, all information marked as being confidential and any other information which might reasonably be assumed to be confidential. BrightTALK may disclose confidential information to its own third party suppliers only if necessary and only for purposes related to an SOW and BrightTALK shall use reasonable endeavors to ensure that any such third party suppliers keep such information confidential.
7.2 The obligations as to confidentiality in this Agreement will not apply to any information which: (a) is available to the public other than because of any breach of this Agreement; (b) is, when it is supplied, already known to whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; (c) is independently obtained by whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or (d) is required to be disclosed by law or by any court or tribunal with proper authority to order its disclosure (but only to the extent of such requirement of disclosure and provided the recipient prompt notice of the required disclosure to the disclosing party, to the extent permitted by applicable law).
7.3 In the course of BrightTALK providing Services to Customer, it may be necessary for BrightTALK to have access to about the Personal Information of Customer’s employees, clients, and vendors, belonging to or retained by Customer. For example, BrightTALK collects Customer Information upon registration to brighttalk.com, which may include an employee’s name, email address, telephone number, job title, and the Company’s name and credit card and billing information. BrightTALK may process this Personal Information for the purposes of managing its own business and fulfilling its obligations under this Agreement and any relevant SOW.
7.4 Notwithstanding any other part of this clause 7, BrightTALK shall be permitted to tell others about the Services it provides to Customer in general terms, including making reference to Customer’s identity, but without disclosing the commercial terms on which they were supplied including any fees.
8.1 Customer agrees to indemnify and hold BrightTALK and its officers, directors, shareholders and employees harmless from any claim, damages, loss or liabilities (including reasonable legal costs): (a) made by any third party due to or arising out of Customer Content published, transmitted or otherwise made available through the Services; (b) resulting from Customer’s use of the Services which contravenes any applicable law or regulation, including but not limited to data and privacy laws; or (c) arising from use of Personal Information as further set forth in clause 9 below.
8.2 BrightTALK shall indemnify and hold Customer, its officers, directors, shareholders and employees harmless from any claim, damages, loss or liabilities (including reasonable legal costs) suffered or incurred by Customer directly as a result of any claim that the BrightTALK technology used to provide the Service infringes the Intellectual Property Rights of any third party. For the avoidance of doubt, BrightTALK is not responsible for claims relating to the Customer Content.
8.3 A party seeking to enforce an indemnity under this clause 8 will: (a) give the indemnifying party prompt notice of the claim or action concerned; (b) provide reasonable co-operation with the indemnifying party in the management, defense and settlement of such claim or action, at the indemnifying party’s request and expense; (c) give the indemnifying party sole authority to defend or settle the claim or action; and (d) use commercially reasonable endeavors to mitigate its losses incurred in connection with the claim or action.
9 USE OF PERSONAL INFORMATION BY CUSTOMER
9.1 Customer may be entitled to receive from BrightTALK certain Personal Information with respect to Users who have subscribed to, or interacted with, Customer Content or Sponsored Content. Customer agrees that its collection, storage and use of such Personal Information must be in accordance with all applicable laws with any privacy policies Customer has published. Customer is responsible for providing complete and accurate information about its proposed uses of Personal Information to Users and for obtaining all necessary consents for those uses. Customer understands and agrees that BrightTALK is not responsible for the use of Personal Information by Customer.
9.2 BrightTALK shall disclose Users’ Personal Information to Customer in accordance with the provisions of the applicable SOW, subject to the requirements of applicable laws, including but not limited to data protection laws. To the extent that such laws prevent or restrict BrightTALK from disclosing User Personal Information to Customer, compliance by BrightTALK with the requirements of such laws shall not constitute a breach of this Agreement or any SOW.
9.3 BrightTALK may, subject to the provisions of the relevant SOW, provide Customer with a mechanism for obtaining User consent via the BrightTALK platform. Such mechanism shall enable Customer to identify itself and request permission to contact the User for purposes including electronic direct marketing. If Customer selects this option, BrightTALK shall provide Customers with information on which Users have given their consent via such mechanism. It shall be Customer’s responsibility to ensure that it abides by the terms of any such consent.
10 DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES PROVIDED BY BRIGHTTALK AND ANY CONTENT ON BRIGHTTALK.COM ARE PROVIDED “AS IS”, WITH NO WARRANTIES WHATSOEVER. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, ARE EXPRESSLY DISCLAIMED BY BRIGHTTALK AND ITS LICENSORS TO THE FULLEST EXTENT PERMITTED BY LAW, AND BRIGHTTALK AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILTY, DATA STORAGE, QUALITY, SUITABILITY, TRUTH, ACCURACY, NONINFRINGEMENT OR COMPLETENESS OF THE SERVICES. BRIGHTTALK AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICE OR ANY CONTENT OR INFORMATION OBTAINED THROUGH THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, OR ANY ERRORS OR DEFECTS WILL BE CORRECTED; OR (C) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
11 LIMITATION OF LIABILITY
IN NO EVENT WILL BRIGHTALK OR ITS LICENSORS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, LIQUIDATED, SPECIAL, MORAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, REVENUE, BUSINESS, VALUE, GOODWILL, ANTICIPATED SAVINGS, OR DATA, OR COST OF COVER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BRIGHTALK’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER HEREUNDER DURING THE 12-MONTH PERIOD BEFORE THE DATE THE EVENT GIVING RISE TO LIABILITY AROSE. THE LANGUAGE OF THIS SECTION SHALL REMAIN IN FORCE AND EFFECT BEYOND THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
In any jurisdiction that does not permit limitations of liability, the foregoing limitation may not apply.
12 CONTRACTING PARTIES, NOTICES, GOVERNING LAW AND JURISDICTION
The party that Customer is contracting with under this Agreement is BrightTALK Inc., a Delaware corporation. Notices in connection with this Agreement should be sent to BrightTALK Inc. at 501 Folsom Street, 2nd Floor, San Francisco, CA 94105, USA.
This Agreement is governed by the laws of the State of California, and is subject to the exclusive jurisdiction of the courts of the courts of San Francisco, California, USA.
13.1 Change of Control
Neither this Agreement nor any of the rights or obligations of either party under this Agreement, nor any SOW, may be assigned or transferred without the prior written agreement of the other party, which shall not be unreasonably withheld. Notwithstanding the foregoing, the prior written agreement of the other party shall not be required in respect of assignments of this Agreement, any of the rights or obligations of either party under this Agreement, or any SOW, to a successor in interest, or pursuant to a merger, corporate reorganization, or a sale or transfer of all or substantially all of said party’s assets.
13.2 Entire Agreement
This Agreement and any SOW, addenda and amendments attached hereto set forth the entire agreement of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and understandings with the respect to the same. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on any party unless agreed to in writing by both parties. In the event Customer issues a purchase order, or other order confirmation, or any documentation, which contains terms or conditions contrary to this Agreement, the terms of this Agreement shall prevail and any such contradictory terms or conditions shall have no force or effect.
Both parties shall have in place and shall maintain professional indemnity and other relevant insurance coverage at a level commensurate with its potential liabilities under and in connection with this Agreement.
13.4 Force Majeure
Neither party will be responsible for, except for Fees owed, any delay, interruption or other failure to perform under this Agreement due to acts of God or circumstances beyond the direct control of the responsible party but only for so long as such conditions persist, including without limitation Internet or third party service failures.
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
14 DEFINITION OF TERMS USED IN THIS AGREEMENT
In this Agreement, the following definitions shall apply:
(i) “Audience Program” means audience information received pursuant to an SOW whereby Customer receives information such as the name, job title, organization name, country, telephone number and email address, for a registrant to Sponsored Content;
(ii) “BrightTALK” means BrightTALK Inc.;
(iii) “brighttalk.com” means a website that is wholly-owned and/or operated by BrightTALK and/or sub-domains thereof;
(iv) “Capacity Limit” means 600,000 minutes per 12 month period for each purchased package, and for contracts of less than 12 months duration the Capacity Limit is adjusted downwards pro-rata;
(v) “Capacity Charge” means USD 0.01 per minute of viewing;
(vi) “Customer” means the person or entity that is accepting this Agreement, and any entity, which directly or indirectly controls, is controlled by, or is under common control with such person or entity, as applicable. “Control”, for the purposes of this definition, means direct or indirect ownership of control of more than 50% of the voting interests of the subject entity;
(vii) “Customer Content” means all webcasts and other content that is published within a player served via the BrightTALK platform by or on behalf of Customer, or by or on behalf of a Customer’s invited webcast presenter, including, without limitation, video, music, audio, photographs, images, text, any digital file, any live event and all Intellectual Property therein;
(viii) “Customer Information” means personal information about Customer’s employees, contractors, clients and vendors;
(ix) “Fees” mean charges for the Services specified in an SOW, which are owed to BrightTALK;
(x) “Intellectual Property Rights” or “Intellectual Property” means all legal and beneficial title and/or interest in all patents, utility models, rights to inventions, copyright and related rights, moral rights, trademarks, trade secrets, trade names, rights to domain names, rights in get-up and trade dress, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications, rights to apply for and obtain, and renewals or extensions of, rights to claim priority from such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
(xi) “Personal Information” means any information relating to any individual who can be identified, directly or indirectly, from that information, whether in isolation or in combination with any other available information.
(xii) “Rate” means Federal Funds Rate if Customer;
(xiii) “Services” means the services specified in a Statement of Work;
(xiv) “Sponsored Content” means a webcast or group of webcasts or other materials and content sponsored by Customer as set out in a Statement of Work;
(xv) “Statement of Work” or “SOW” means a proposal signed by both parties setting out the Services to be provided by BrightTALK;
(xvi) “User” means a person who has registered as a subscriber on the BrightTALK technology platform.
15 COPYRIGHT, COMPLAINTS, REPEAT INFRINGER
If Customer believes that anything on BrightTALK infringes on any copyright which it owns or controls, it may file a notification of such infringement with our Designated Agent as set forth below:
Notification of copyright infringement should be sent by mail, fax or email to:
Designated Agent: Paul Heald
Address: 501 Folsom Street, 2nd Floor, San Francisco, CA 94105, USA
Telephone Number: +1 415 625 1500, Fax Number: +1 415 625 1555
Email Address: firstname.lastname@example.org
In accordance with the Digital Millennium Copyright Act (DMCA), BrightTALK has adopted a policy of limiting access to brighttalk.com and/or terminating, in appropriate circumstances and at BrightTALK’s sole discretion, Users or account holders who are deemed to be infringers.