TERMS & CONDITIONS
TERMS & CONDITIONS DEFINITIONS. BriteScan, LLC (“BriteScan”) agrees to furnish to the party ordering services and/or Products (“Buyer”), including but not limited to software, verification software, database services, consultation, research, and other services provided by BriteScan in connection with sale or use of Products including goods or equipment provided to Buyer (collectively referred to as “Services”) which are subject to the following terms and conditions. Buyer agrees that no other terms and conditions, including those of any purchase order issued by Buyer, shall apply unless explicitly incorporated herein. ACCEPTANCE. Buyer will be deemed to have accepted this Agreement when Buyer places order for Products or Services. Buyer agrees that any other User of Products or Services Buyer has purchased are bound by this Agreement. This Agreement shall be in effect from the time Buyer purchases Services and/or Products from BriteScan until the Buyer ceases using and Services or Products acquired from BriteScan (“the Term”). BriteScan reserves the right to accept or reject any order for Products or Services. Buyer has no right to cancel or defer shipment, delivery or installation unless agreed to in writing by BriteScan. This Agreement, and all exhibits, riders or limited warranties attached hereto, is intended to be the exclusive and final statement of the terms and understandings relative to the subject matter hereof, merging herein and superseding all negotiations and prior written or oral Agreements between the parties as to the subject matter of the purchase of the Products or Services. RATES & PAYMENT. Payment shall be made immediately in full by Buyer when Services or Products are ordered as pre-payment, using a credit card online. Failure to make prompt and full payment hereunder constitutes a material breach of this Agreement and affords BriteScan the right to suspend its performance without liability to Buyer and cancel this Agreement. Buyer has no right of setoff. If full payment is not made when due, BriteScan shall be entitled to terminate all services to Buyer going forward, and Buyer will not be entitled to any refund. Should Buyer fail to use all Service credits, Buyer will not be entitled to any refund. Buyer agrees to reimburse BriteScan for any and all expenses BriteScan may incur, including reasonable attorneys’ fees, in taking any action contemplated by this Paragraph. Buyer understands and agrees that all monthly recurring fees renew automatically (“auto-renew”) and will not stop until and unless Buyer terminates their auto-renew at their BriteScan Customer portal. Cessation of auto-billing will occur in the month following Buyer termination of the auto-renew. DISCLAIMER OF WARRANTY. Buyer will pay for services performed by BriteScan regardless of the results of Services or the quality of Products. (A) BRITESCAN WARRANTS FOR A PERIOD OF 30 DAYS COMMENCING ON THE DATE OF DELIVERY THAT THE PHYSICAL PRODUCTS ARE FREE OF MATERIAL DEFECTS. BUYER’S EXCLUSIVE REMEDY IN CONNECTION WITH THESE EXPRESS WARRANTIES IS THE REPAIR OR REPLACEMENT OF THE PHYSICAL PRODCUTS OR, AT BRITESCAN’ OPTION, A REFUND OF THE PURCHASE PRICE, IF ANY, ACTUALLY PAID BY BUYER. (B) BRITESCAN MAKES NO WARRANTY AS TO RESULTS TO BE OBTAINED BY THE BUYER FROM THE USE OF ANY SERVICES AND/OR PRODUCTS AND THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. (C) IN ALL CASES IT IS THE RESPONSIBILITY OF THE BUYER TO VERIFY THE VALIDITY OF ANY INTERPRETATIONS, ASSESSMENTS AND CONCLUSIONS OBTAINED BY BUYER THROUGH THE USE OF THE BRITESCAN SERVICES AND PRODUCTS. License and Right to Use. Subject to the terms and conditions of this Agreement, BriteScan hereby grants to Buyer: (i) during the Term, a limited, worldwide, revocable, non-exclusive, non-transferable license, without the right to sublicense, to BriteScan Services and Products that are required for Buyer to use the Services and Products contemplated by this Agreement. (ii) a limited, worldwide, perpetual, non-exclusive, non-transferable license, without the right to sublicense, to “Tagged Content”, which means the annotations or predictions attached to Content, for example descriptive keywords or terms, (iii) during the Term, a right to view, and provide Feedback on, third-party content, if such third-party content has been made available to Buyer. With the sole exception of the physical hardware acquired by Buyer, Buyer acknowledges and agrees that this Agreement is a subscription Agreement for use of the Services and not an Agreement for sale. Buyer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Buyer under this Agreement. Buyer agrees that BriteScan or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the BriteScan Properties, which is defined as the Documentation, the Services, and Intellectual Property. Further, Buyer acknowledges that the BriteScan Properties are offered as an on-line, hosted solution, and that Buyer has no right to obtain or retain a copy of any of the BriteScan Properties unless otherwise stated herein. Buyer acknowledges and agrees that all “Models” belong exclusively to BriteScan’s third party vendor. For purpose of this section, “Model” means the method, algorithm, neural net or other capability that has been created based on general or specific criteria and Annotated Data. BriteScan’s third party vendor shall not use any Models for any purpose other than providing the Services to Buyer or performing its other obligations to BriteScan. Submission of Content. During the Term, Administrators and Authorized Agents (and any Third-Party Users pursuant to a valid sublicense) may submit Content to BriteScan. License Grants. Subject to the terms of this Agreement, Buyer hereby grants to BriteScan, solely for the purpose of providing the Services to Buyer or performing its other obligations under this Agreement: (i) during the Term, a limited, worldwide, revocable, non-exclusive, non-transferable license, without the right to sublicense, to the Content, in whole or in part. (ii) a limited, worldwide, perpetual, non-exclusive, non-transferable license without the right to sublicense, to Tagged Content, and (ii) during the Term, a worldwide, non-exclusive, non-transferable, fully paid license to display Buyer’s Marks for the sole purposes of identifying Buyer as a customer and promoting and marketing BriteScan. Customer Representations and Warranties. Buyer represents, covenants, and warrants that (i) Buyer has, and shall maintain during the Term, the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the rights and licenses granted hereunder, (ii) Buyer will use the Services only in compliance with this Agreement and all applicable laws, (iii) any Privacy Data submitted to BriteScan or imported by BriteScan on Buyer’s behalf will be encrypted in transmission, (iv) Buyer requires that all Administrators and Authorized Agents keep user names and passwords used to access any BriteScan Properties secure and to not share such user names or passwords with any third party, (v) Administrators and Authorized Agents will use unique passwords when accessing the BriteScan properties; (vi) Buyer removes Administrator’s and Authorized Agents who have been terminated or otherwise lost access privileges in a timely manner (BriteScan will not incur any liability to Buyer if Administrators or Authorized Agents fail to maintain the confidentiality of their passwords or fail to use two factor authentication, if applicable), (vii) Buyer owns all right, title and interest, or possesses sufficient license rights, in and to the Content as may be necessary to permit the use contemplated under this Agreement and that BriteScan’s use of the Content is permitted under the fair use doctrine (US) or the fair dealing doctrine, (viii) Buyer shall not use BriteScan Properties to store any data or information including, without limitation, information that constitutes personally identifiable financial information as defined by and subject to the Gramm-Leach-Bliley Financial Modernization Act of 1999 (GLBA), data on any minor under the age of thirteen that would be subject to the Children Online Privacy Protection Act (“COPPA”) or any protected health information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), and (ix) Buyer maintains industry standard security practices, assumes the risk of its Users improperly accessing BriteScan Properties. Buyer shall be responsible to BriteScan for any and all acts or omissions of Buyer’s Administrators and Authorized Agents. (x) Buyer acknowledges and agrees that it will be bound by BriteScan’s Privacy Policies as posted on the BriteScan website and as updated from time to time. (xi) Buyer Acknowledges and agrees that BriteScan, in its sole discretion, reserves the right to deny Buyer and its Administrators and Users access to BriteScan’s Services and Products and revoke the licenses herein, or any portion of thereof, without notice, and to remove any Content that does not adhere to these terms. NON-LIABILITY OF BRITESCAN. A. BriteScan shall not be liable, by reason of its performance under this Agreement, for any loss of profits, claims against Buyer by any third party, or consequential damages even if BriteScan is advised of the possibility of such loss, claims, or damages. Buyer agrees that BriteScan’ liability hereunder for damages, regardless of the form of action, shall not exceed the total of all charges paid by Buyer for the particular services rendered. B. Buyer agrees that BriteScan shall incur no liability to Buyer or to any third party for any loss, cost, claim or damage, either direct or consequential, arising from BriteScan’ delay in performance or failure to perform Services pursuant to this Agreement, including but not limited to unavailability of BriteScan’s website of database services. C. BriteScan shall incur no liability to Buyer or to any third party for loss or destruction of or damage to any data, equipment, or other property brought upon BriteScan premises by Buyer or delivered to BriteScan by Buyer in connection with this Agreement. Buyer accepts all liability for risk of loss to any and all such property. Any proceeding or dispute relating directly or indirectly to this Agreement shall be submitted to final and binding arbitration before the Judicial Arbitration and Mediation Service (“JAMS”) before a single arbitrator. The arbitrator shall have expertise in the subject matter of the dispute. The arbitration process including the selection of an arbitrator, exchanges of requests for information and the arbitration hearing, shall be completed within ninety (90) days following the initiation of arbitration. The actual arbitration hearing shall be limited to no more than two (2) days and the arbitrator shall issue a written opinion specifying the reasons for the decision within ten (10) days following the arbitration hearing. Judgment upon any arbitration award may be entered in any court having jurisdiction located in San Francisco, California. This provision will be self-executing and in the event anyone fails to appear at any properly noticed arbitration proceeding; an award may be entered against such Party notwithstanding such failure to appear. In the event of any litigation or arbitration hereunder, the arbitrator or court shall award costs and reasonable attorneys’ fees to the prevailing party. The Parties agree that any breach of the obligations under this Agreement which is otherwise not subject to remedy by monetary damages that will cause irreparable harm will be entitled to injunctive relief and other forms of equitable relief in addition to all other remedies provided in this Agreement or available at law, in any court of competent jurisdiction. This dispute resolution requirement shall survive termination of this Agreement. Any claim must be submitted to arbitration within the earlier of twelve (12) months of termination of this Agreement or twelve (12) months from the date of discovery or shall be void. The venue for arbitration shall be San Francisco, California. This Agreement shall be governed by and construed in accordance with the laws of the State of California. INDEMNIFICATION (A). Buyer agrees to indemnify, defend, and hold harmless BriteScan, its officers, employees and agents, from and against any and all liability, loss, expense, attorneys’ fees or claims for injury or damages arising out of or in connection with this Agreement. (B.) Buyer further expressly understands and agrees that BriteScan offers and expresses no opinion of any kind whatsoever as to the fitness for any particular use of any results obtained from use of Britescan Services or Products. Buyer agrees to defend and indemnify BriteScan from and against any liability, loss, expense, attorney’s fees or claims for injury or damages arising out of or in connection with any claims that the Services or Products were not fit for the use to which Buyer put them. (C.) The parties specifically agree that BriteScan’s limit of liability for any alleged breach of this Agreement, whether sounding in tort or contract shall be the total amount paid to BriteScan, or 500 dollars, whichever is less. In the event that BriteScan is named in any action related to the Services performed or Products delivered hereunder, Buyer agrees to defend and indemnify BriteScan against any and all such claims. RESERVATION OF RIGHTS. The sale of Products and Services covered by this Agreement shall not confer upon Buyer any license or right under any patents, trade secrets or other proprietary information owned or controlled by BriteScan, or the right to otherwise utilize such proprietary information, it being specifically understood and agreed that all such rights are reserved to BriteScan. Other than data uploaded by Buyer, and results obtained through optical analysis of said data, all intellectual property rights associated with the Services and Products offered to Buyer by BriteScan belong exclusively to BriteScan, and not the Buyer. BRITESCAN’ RIGHT TO USE DATA. BriteScan shall have the unrestricted right to use for its own purposes, including publication, any data or information that it may develop in connection with or as a result of performing the services described, however all results will remain anonymous. NAME. No form of the names “BriteScan®” shall be used in any form or manner in advertisements, reports or other information released to the public without the prior written approval of BriteScan. RELATIONSHIP OF THE PARTIES. The parties to this Agreement shall be and remain at all times independent contractors, neither being the employee, agent, representative, or sponsor of the other in their relationship under this Agreement. WAIVER AND SEVERABILITY. No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. If any term, covenant, warranty, remedy or condition of this Agreement, or the application thereof to any person or circumstance shall, to any extent, be held or deemed invalid or unenforceable, the remainder of this Agreement or the application of such term, covenant or provision, to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each remaining term, covenant or provision of this Agreement shall be deemed valid and enforced to the fullest extent permitted by law. FORCE MAJEURE. BriteScan shall have no liability or obligation to Buyer of any kind, including, but not limited to, any obligation to deliver Products or provide Services, arising from any delay or failure to perform all or any part of this Agreement as a result of causes, conduct or occurrences beyond BriteScan’s reasonable control, including, but not limited to, commercial impracticability, fire, flood, earthquake, lightning, storm, accidents, act of war, terrorism, civil disorder or disobedience, act of public enemies, problems associated with transportation (including car or truck shortages), shortages of energy or raw materials, acts or failure to act of any state, federal or foreign governmental or regulatory authorities, labor disputes, strikes, or failure of suppliers to make timely deliveries of materials, goods or services to BriteScan. ASSIGNMENT AND MODIFICATION. The rights and obligations of Buyer under this Agreement shall not be assignable without the prior written consent of BriteScan. This Agreement shall not be modified, altered or amended in any respect except by a writing signed by the parties. GOVERNING LAW. This Agreement and all claims and causes of action shall be governed by and subject to the internal laws (exclusive of the conflicts of law provisions) and decisions of the courts of the State of California. The sole and exclusive venue for all claims and causes of action between the parties shall be via arbitration with JAMS in San Francisco CA. WHOLE AGREEMENT. These Terms & Conditions constitute the entire understanding of the parties respecting the subject matter hereof and supersedes any prior understanding or Agreement between them, written or oral, regarding the same subject matter, unless both parties have engaged in an Agreement that supersedes this. To the extent that the parties have entered into an Annual Service Agreement, the Annual Service Agreement is considered to be an addendum to these Terms & Conditions. In the event of an ambiguity between these Terms & Conditions and any Annual Service Agreement, these Terms & Conditions shall govern the relationship between the parties.
