1. Electronic Agreement/Modification. This Agreement is an electronic contract that sets out the legally binding terms of your use of the Software and your eligibility for the Service. By accessing the Software or using the Service, you consent to have this Agreement provided to you in electronic form. By accessing the Software or clicking the "Accept and Continue" Button, you accept this Agreement and agree to the terms, conditions and notices contained or referenced herein.
2. Modification. This Agreement may be modified by BA at its sole discretion from time to time, such modifications to be effective upon posting by BA on the Software or Brilliant Agent.com and your use of the Software or the Service after such posting will constitute acceptance by you of such changes. Please consult this Agreement regularly. This agreement was last updated on March 5, 2013.
3. Access and Retention. A link to this Agreement will be found on the Brilliant Agent.net homepage. In order to access and retain this electronic Agreement, you must have access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must use all software and equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. Please print a copy of this document for your records. To retain an electronic copy of this Agreement, you may save it into any word processing program.
1. Services and Software.
(A) Service. Client hereby orders the Service for the scope and pricing specified on BrilliantAgent.com or website order form??? during the term of this Agreement, and BA hereby agrees to perform such Service, subject to the terms and conditions set forth in this Agreement.
(B) Limited License to Use. Subject to the terms of this Agreement, BA hereby grants to Client a non-exclusive, non-transferable right to access and use the Software solely for Client's internal business purposes during the term of this Agreement. BA reserves all rights not expressly granted to Client.
(C) Username/Passwords. Immediately upon the execution of this Agreement, BA shall deliver the usernames and passwords and other user identification for Client to access and use the Service and/or Software. Client shall not share the passwords with any third party and shall keep such passwords strictly confidential.
2. Third Party Access to Brilliant Agent.
(A) Third Party Use. During the term of this Agreement, Client may market to, and allow, its own customers ("Customers") the ability to access and use a Client Website at no charge the purpose of transacting business, including requesting services and other limited activities, with Client.
(C) Client Website Customization. Client will customize its identifying graphics and/or text information to be integrated into the Client Website. The resulting Client Website will present identity and contact information exclusive to Client. Client may engage BA for paid development of Client's Client Website at an additional fee as set forth in Article IV, Section 2. Client Website designs created by BA for multiple clients of BA may share certain design elements such as graphics and layout.
(D) Site Identity. In order to separate out identities of involved parties, no BA promotional and identifying material such as homepage text, brand identity, trade name, trademark, and graphics, may be copied without prior specific written approval. However, BA may place a notice on the Client Website that the website is a BA powered site.
1. Ownership. BA owns and retains all right, title and interest in and to the following: (i) the Service and all Software and other software, hardware, technology, documentation, and information provided by BA in connection with the Service (excluding in all cases the Client Data); (ii) all ideas, know-how, and techniques that may be developed, conceived, or invented by BA during its performance under this Agreement; (iii) Brilliant Agent; and (iv) all worldwide patent, copyright, trade secret, trademark and other intellectual property rights in and to the property described in clauses (i), (ii) and (iii) above (collectively, "BA Property"). Except as otherwise expressly authorized herein or by BA in writing, the non-exclusive use rights set forth in this Agreement are the entirety of Client's rights in connection with the BA Property. This Agreement is not a sale of BA Property or any portion, copy or derivative work thereof. Accordingly, all rights in the BA Property are hereby expressly reserved. BA shall be entitled to use, license, sell, assign, transfer, and/or otherwise provide rights relating to the BA Property to any third party for any purpose free from any claim of Client.
2. Restrictions. Except as otherwise expressly authorized herein or by BA in writing, Client shall not directly or indirectly (and shall not permit any unauthorized party to) do any of the following: (i) access, use, sell, distribute, sublicense, sublease, broadcast, or commercially exploit any BA Property or any rights under this Agreement, including without limitation any access or use of any BA Property on a service bureau basis or for any Client processing services beyond the scope specified in this Agreement (such as for any unauthorized parties on a rental or sharing basis); (ii) copy, modify, or prepare derivative works based on BA Property; (iii) reverse engineer, decompile, disassemble, or attempt to derive source code from any BA Property; (iv) remove, obscure, or alter any intellectual property right or confidentiality notices, copyright notices or legends appearing in or on any aspect of any BA Property; (v) cause any confusion with BA's brand or identity; or (vi) interfere, in any manner, with BA's provision of the Service.
1. Ownership. As between BA and Client, Client shall own all right, title and interest in and to the Client Data including, without limitation, all patent rights, copyright rights, trademark rights, trade secret rights, confidentiality rights, or any other rights therein. "Client Data" means the data and information specifically pertaining to Client's service or Customers that BA may obtain in the course of performing the Service under this Agreement.
2. Right to Use. Subject to the terms of this Agreement, Client hereby grants BA a royalty-free, non-exclusive, non-transferable right and license to use, copy, store, and display the Client Data for the sole purpose of enabling BA to perform the Service under this Agreement. Client shall retain sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all Client Data.
3. Collection of Client Data. BA agrees that it will not harvest or collect Client Data, nor use such Client Data except as reasonably necessary to perform the Service.
1. Fees. Client will pay to BA fees in advance for the Software and Service, as set forth in the BrilliantAgent.com website OR WEBSITE ORDER FORM???. All fees payable hereunder, including the initial fee and recurring monthly fees, shall be non-refundable. Failure to pay any fees within ten (10) days after any payment is due may result in a discontinuation in service and/or increased monthly hosting fees. If BA exercises its right to increase monthly hosting fees due to Client's failure to pay, BA shall notify Client of such increase in writing.
2. Additional Services/Support. Client will pay BA for any service requested by Client or otherwise required which is not specifically part of the Service at the then-current fees for such service, plus all reasonable expenses incurred by BA in providing such service. In addition, Client will pay BA for reasonable expenses incurred by BA for any on-site services under this Agreement that are performed at the specific request of Client, which services are outside the scope of the Service. BA will provide up to one (1) hour of customer support to Client to configure Brilliant Agent and train Client. BA will provide support by email and phone to Client. Additional support or services will be billed at BA's hourly rate (currently at $45 an hour) and shall be billed in fifteen (15) minute increments.
3. Taxes. All fees and charges required to be paid by Client shall include all governmental taxes, assessments, fees, and duties in connection with the transactions contemplated by this Agreement (excluding taxes based on BA's net income or its authority to do business within a given jurisdiction), unless Client provides BA in advance with an applicable and valid tax exemption certificate authorized by the applicable governmental authority. Such taxes specifically include without limitation: (i) sales, use, and other similar taxes, assessments, duties, and charges now in effect or enacted in the future that are applicable thereto (collectively, the "Taxes
4. Nonexclusive Remedies. If, at any time, Client is delinquent in the payment of any fees hereunder or is otherwise in breach of this Agreement, BA shall notify Client in writing of such breach and, in such case, Client will have ten (10) days from receipt of BA's written notice to cure the breach. If Client fails to cure such breach within such 10-day period, then BA may suspend Service and/or access/use of the Software in its reasonable discretion and without prejudice to its other rights until such time as the breach has been cured by Client or this Agreement has been terminated by either party. Late payments of undisputed invoices hereunder will accrue interest beginning as of the due date at the rate of one and one-half percent (3/2%) per month or the highest rate permitted by applicable law, whichever is less, and shall be due immediately.
5. Change in Fees. Except as provided for in Article IV, Paragraph 1, the monthly fees indicated above will not change during the initial one (1) year term of this Agreement. Except as provided for in Article IV, Paragraph 1, any subsequent change in fees will be communicated by BA to Client at least thirty (30) days prior to the end of the initial term and any subsequent term of this Agreement.
1. Mutual Warranties. BA and Client each hereby represents, warrants, and covenants to the other that: (i) it has the authority and right to enter into this Agreement, to grant the rights granted by it under this Agreement, and to perform its obligations under this Agreement and that neither party nor its employees or agents, if any, is under any pre-existing obligation or obligations inconsistent with the provisions of this Agreement; (ii) it has no knowledge of any claim of infringement of any patent, copyright, trademark, or misappropriation of any trade secret or other proprietary right of any third party as a result of the performance of this Agreement or any acts contemplated by this Agreement, and (iii) no consent or approval is required from any third party or governmental authority with respect to the entering into or the performance of this Agreement by such party.
2. WARRANTY DISCLAIMER
(A) THIS AGREEMENT PROVIDES LICENSES TO SOFTWARE AND SERVICES AND IS NOT A SALE OF GOODS.
(B) CLIENT ACCEPTS RESPONSIBILITY TO VERIFY THAT THE SOFTWARE, CLIENT WEBSITE AND SERVICE WILL MEET CLIENT'S SPECIFIC REQUIREMENTS AND PERFORM AS WARRANTED. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BA DISCLAIMS ALL WARRANTIES, GUARANTIES, CONDITIONS OR REPRESENTATIONS OF ANY KIND (EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE AND THOSE ALLEGED TO ARISE BY A CUSTOM OR USAGE IN A TRADE, OR BY COURSE OF DEALING. BA DOES NOT WARRANT THAT THE SOFTWARE OR BRILLIANT AGENT OR CLIENT WEBSITE WILL OPERATE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE. BA HAS NO WARRANTY OBLIGATION FOR THIRD PARTY SOFTWARE EVEN IF BA ASSISTED IN EVALUATING OR SELECTING IT. THE SOFTWARE, BRILLIANT AGENT, CLIENT WEBSITE AND SERVICE ARE PROVIDED "AS IS," WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. CLIENT EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF THE SOFTWARE IS AT CLIENT'S SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BA OR BA'S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES CONTAINED IN THIS SECTION.
(A) BA shall indemnify, defend and hold Client harmless from and against any loss, cost, damage, liability, or expense (including reasonable legal fees) suffered or incurred by Client in connection with any U.S. patent, or any copyright or other intellectual property infringement claim by any third party with respect to the Software. This indemnity obligation shall apply only to the extent that the Client promptly notifies BA after Client becomes aware of such claim, grants to BA the authority to defend, compromise, or settle the claim of infringement, and provides BA any Client information relevant to such claim. BA shall have no liability for any claims of infringement that are based on a modification to the Software. This section shall constitute BA's entire obligation to Client with respect to any claim of infringement.
(B) Client shall, at its expense, defend, indemnify, and hold harmless BA and its employees, Clients, successors and assigns from and against any and all loss, damage, liability, and expense arising from any claim brought against any such indemnified party by any third party to the extent (1) regarding any transaction between Client and Client's Customers and/or (2) alleging that the Client Data, as provided by Client and used in accordance with the terms of this Agreement, infringes upon any United States patent, copyright, trademark, trade secret, or other proprietary right of such third party, subject to the terms of this Agreement.
4. LIMITED LIABILITY. EXCEPT FOR FAILURE TO COMPLY WITH THE PROPRIETARY RIGHTS OR THE INFRINGEMENT INDEMNITY PROVISIONS CONTAINED IN THIS AGREEMENT:
(A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR A MONETARY AMOUNT GREATER THAN THE TOTAL AMOUNTS PAID FOR A PERIOD OF THREE MONTHS OR DUE PURSUANT TO THIS AGREEMENT, AND
(B) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OR INJURIES TO EARNINGS, PROFITS, OR GOODWILL, OR FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, REVENUE, BUSINESS INFORMATION OR DATA, OF ANY PERSON OR ENTITY WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BA HAS SET PRICES FOR THE SOFTWARE AND SERVICE BASED ON THE ALLOCATION OF RISKS SET OUT IN THIS LICENSE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS.
THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
5. Limitations Period. Neither party may bring any claim or action arising out of or related to this Agreement, including any claim of fraud or misrepresentation, more than one (1) year after the claim accrues. CLIENT AGREES THAT ANY CLAIM NOT PRESENTED WITHIN ONE (1) YEAR OF THE ACCRUAL OF THE CLAIM BY CLIENT SHALL BE DEEMED TO BE WAIVED.
1. Term. The term of this Agreement will commence on the date of this Agreement and will continue thereafter for an initial term of one (1) year (the "Initial Term"), unless terminated sooner under the terms of this Agreement. The term will automatically renew for successive one (1) year terms unless written notice is provided at least thirty (30) days prior to the end of the Initial Term or any subsequent renewal term. All terms and conditions hereof shall remain in effect during any renewal term, except as the parties otherwise expressly agree to in writing.
2. Termination for Breach. If either party materially breaches this Agreement, the other party may give written notice of its desire to terminate and the specific grounds for termination and, if such default is capable of cure and the party in default fails to cure the default within thirty (30) days of the notice, the other party may terminate this Agreement immediately upon written notice of its desire to terminate.
3. Reservation of Remedies. Termination of this Agreement, or any portion of it, shall not limit either party from pursuing other remedies available to it, including injunctive relief. Such termination shall not relieve Client of its obligation to pay all fees that have accrued or are otherwise owed by Client. In the event that Client fails to pay any fees due hereunder, Client shall be in default under this Agreement and BA may immediately restrict access to the Software and Service.
4. Effect. Upon termination, the License to use the Service or Software, along with any BA images, photographs or other related materials, shall be immediately revoked.
Client shall not export, re-export, or otherwise transmit, directly or indirectly, any software, information, data, or other materials received under this Agreement outside of the United States or Canada without prior written approval of BA and in full compliance with all United States and other applicable acts, laws, and regulations. Client shall indemnify, defend and hold harmless BA from any loss, liability, cost, or expense (including legal fees) related to any action arising from Client's failure to comply with this section.
1. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach.
2. No amendments, modifications, or supplements to this Agreement shall be binding unless in writing and signed by the parties. The headings and titles to the sections of this Agreement are inserted for convenience only and shall not be deemed a part of, or affect the construction or interpretation of, the provisions of this Agreement.
3. All disputes involving the subject matter of this Agreement except actions arising under the patent and copyright provisions of the U.S. Code, shall be determined under the laws of the State of Florida. Venue for any and all disputes shall be in a court of competent jurisdiction in and for Sarasota County, Florida.
4. Neither party shall be liable for any costs or damages resulting from its inability to perform any of its obligations under this Agreement due to a natural disaster, actions or decrees of governmental bodies or for intermittent delays in service due to interruption of servers or internet or other services provided by third party providers.
5. If any provision of this Agreement is held to be invalid or unenforceable, such decision shall not affect the validity or enforceability of the Agreement or any of the remaining provisions. This Agreement may not be assigned by either party and any attempted assignment shall be void.
6. All amounts stated in and payable under this Agreement or website order form shall be denominated in United States Dollars and shall be payable in ready funds in United States Dollars to BA's designated United States bank account. Unless otherwise agreed to by the parties, BA will invoice all amounts to Client's address as it appears on Page 1 of this Agreement.
7. The parties hereto are independent contractors and neither party nor its employees, directors, Clients, or consultants shall hold itself out to be or allow itself to be considered as an Client or employee of the other party.
8. BA continues to offer its own branded service through websites controlled by BA and its affiliates, while Client will market its own branded service powered by BA. Neither party will knowingly initiate opportunities that are directly competitive and target specifically the other party's customers during this Agreement. BA's marketing targets may or may not unknowingly include Client's then current and future customers as a result of its efforts.
9. The Software is provided with restricted rights. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Contractor/manufacturer is BA.
This Agreement, including its terms and conditions, along with the website order form, is a complete and exclusive statement of the agreement between the parties, which supersedes all prior or concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
Please contact us with any questions regarding this agreement.
I HAVE READ THIS AGREEMENT AND UNDERSTAND AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.
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