September 1, 2019
IMPORTANT – READ CAREFULLY:
THIS BETA PROGRAM IS OFFERED BY BRIGHTSIGN LLC AND ITS AFFILIATES (“BRIGHTSIGN”) AND PARTICIPATION IN THIS BETA PROGRAM IS GOVERNED BY THIS BETA PROGRAM AGREEMENT (THIS “AGREEMENT"). THE BETA PROGRAM MAY CONTAIN ONE OR MORE BETA SERVICES (THE “SERVICES”) AS DETERMINED BY BRIGHTSIGN IN ITS SOLE DISCRETION. YOU UNDERSTAND AND AGREE THAT BRIGHTSIGN WILL TREAT YOUR USE OF THE SERVICES AS ACCEPTANCE OF THIS AGREEMENT. AS LONG AS YOU COMPLY WITH THIS AGREEMENT AND FOR THE DURATION OF THIS BETA PROGRAM, BRIGHTSIGN GRANTS YOU A PERSONAL, NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE, LIMITED LICENSE TO ACCESS AND USE THE SERVICES. THE SERVICES ARE INTENDED SOLELY FOR YOUR INTERNAL EVALUATION AND MAY NOT BE USED IN A LIVE, PRODUCTION ENVIRONMENT.
You also acknowledge that BrightSign has not made any representations, promises or guarantees that the Services will ever be announced or made available to anyone in the future and that BrightSign has no express or implied obligation to you to announce or introduce the Services. BrightSign may discontinue any Beta Program or the Services at any time, in its sole discretion, with or without notice. With respect to the Services, this Agreement shall supersede any other terms and conditions that may be incorporated herein, but only to the extent necessary to resolve conflict.
1. Beta Services
1.1. Description. The Services may be a separate, stand-alone service accessible apart from the generally available service, or it may be a feature or functionality of that service. Further description of the Services is provided at the time you enter the Beta Program, or when a Service is added to the Beta Program, and may be updated from time to time by BrightSign (the “Documentation”).
1.2. “AS IS” Status. By accepting this Agreement or using the Services, you understand and acknowledge that the Services are being provided as a “Beta” version and made available on an “AS IS” or “As Available” basis. The Services may contain bugs, errors, and other problems. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INTERNET ACCESS FEES, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF YOUR DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA. In addition, BrightSign is not obligated to provide any maintenance, technical or other support for the Services.
1.3. Feedback. The Services are made available to you for purposes of evaluation and feedback without any compensation or reimbursement of any kind from BrightSign. You acknowledge the importance of communication between BrightSign and you during your use of the Services and hereby agree to receive related correspondence and updates from BrightSign. In the event you request to opt out from such communications, your participation in the Beta Program will be canceled. During the Beta Program, you may be asked to provide feedback regarding your use of the Services. You acknowledge that BrightSign owns any feedback provided, and you hereby grant to BrightSign, if for any reason it is further needed, a perpetual, irrevocable, royalty-free worldwide license to use and/or incorporate such feedback into any BrightSign product or service at any time at the sole discretion of BrightSign. BrightSign will not publish feedback in a way that is attributable to you without your consent.
1.4. Limitations on Use. Limitations specific to the Services may be contained in the Documentation. You may use the Services pursuant to this Agreement during any period when the Beta Program is live. When a Beta Program is not live, you will no longer have access to the Services. BrightSign reserves the right to modify or impose any limitations on the use of the Services at any time, with or without notice to you.
2. Participation in the Beta Program.
2.2. Reverse Engineering. Except to the extent permitted by law, you may not modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to decipher any code in connection with the Services and/or any other aspect of BrightSign technology.
3. Intellectual Property. You agree that BrightSign owns all legal right, title, and interest in and to the Beta Program and the Services, including all intellectual property rights, and except for the license provided herein, no other rights or permissions to any of the Services is granted. Nothing herein gives you a right to use any of BrightSign trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
4. Modification and Termination of the Service. BrightSign reserves the right to modify or terminate the Beta Program or the Services, or your use of the Beta Program or the Services, to limit or deny access to the Services and/or participation in the Beta Program, at any time, in its sole discretion, for any reason, with or without notice and without liability to you. You may discontinue your use of the Services at any time.
5. DISCLAIMER OF WARRANTIES. YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED BY BRIGHTSIGN ON AN “AS IS” BASIS AND AS AVAILABLE, AND YOUR ACCESS TO AND/OR USE OF THE BRIGHTSIGN BETA PROGRAM OR BETA SERVICES, IS AT YOUR SOLE RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BRIGHTSIGN EXPRESSLY DISCLAIMS ALL AND YOU RECEIVE NO WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BRIGHTSIGN MAKES NO WARRANTY THAT ANY OF THE SERVICES WILL MEET YOUR REQUIREMENTS AND/OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES BRIGHTSIGN MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF ANY OF THE SERVICES IS DONE AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM AND/OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BRIGHTSIGN OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
6. LIMITATION ON LIABILITY. IN NO EVENT SHALL BRIGHTSIGN BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL AND/OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES RELATED TO THIS AGREEMENT AND/OR WHETHER DIRECT OR INDIRECT: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, AND (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), VIOLATION OF STATUTE, OR OTHERWISE, AND WHETHER OR NOT BRIGHTSIGN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BRIGHTSIGN TOTAL LIABILITY HEREUNDER IS LIMITED TO $50.00.
7. Indemnification. You agree to hold harmless and indemnify BrightSign, its affiliates and subsidiaries, officers, directors, agents, and employees (collectively "BrightSign Indemnified Parties") from and against any third party claim arising from or in any way related to (i) your breach of the Terms, (ii) your use of the Beta Program and/or Services, (iii) your violation of applicable laws, rules or regulations in connection with the Services, or (iv) your user content, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, BrightSign will provide you with written notice of such claim, suit or action.
8. Confidential Information. You acknowledge and agree that: (i) subject to sub-paragraph (iv), the successful market launch of commercial versions of the Services requires you to keep all BrightSign data and information discussed and/or made available through or contained in Beta Program, including, without limitation, the Services (collectively the "Confidential Information") confidential; (ii) the premature release of any of the Confidential Information would damage BrightSign competitive edge and intellectual property rights; (iii) the Confidential Information shall not be shared with anyone other than other authorized participants of the same Beta Program; and (iv) only Confidential Information that has been publicly released by BrightSign may be discussed or shown to the public.
9. Changes to the Terms. BrightSign reserves the right to make changes to this Agreement at any time, and it is your responsibility to review the terms from time to time. If the changes are material, BrightSign will post a notice on this page or email you directly, as appropriate and at BrightSign’s sole discretion. You understand and agree that if you use the Services after the date on which a modified Agreement has been published, BrightSign will treat your use as acceptance of the updated Agreement.
10. Compliance with Laws. Both parties agree to comply with all applicable local, state, national and foreign laws, rules, and regulations, including, but not limited to, all applicable import and export laws and regulations governing use, transmission and/or communication of content, in connection with their performance, access and/or use of the Services.
11. International Use. The Services are intended for use from within the United States. If you choose to access and use the Services from locations other than the United States, you do so on your own initiative and at your own risk and you are responsible for compliance with all relevant laws and regulations. BrightSign does not guarantee that the Services shall be appropriate and/or available for use in any particular location.
12. Termination. This Agreement will automatically expire at the end of your participation in the Beta Program unless terminated sooner in accordance with this Agreement. Either party may terminate this Agreement before the end of your participation for any reason or no reason upon written notice to the other party. This Agreement will automatically terminate upon any breach by you of any of your obligations including breach of confidentiality obligations. Your breach of any of your obligations under the Agreement may result in your immediate removal from the Beta Program. Upon request from BrightSign, you will deliver to BrightSign, or delete, at the discretion of BrightSign, the Beta Program materials and any other tangible BrightSign property, if applicable.
13. Miscellaneous. This Agreement may not be assigned by you without the prior written consent of BrightSign, and any attempt to assign without such consent shall be null and void. You acknowledge that your access to and use of the Services is subject to the export control laws and regulations of the United States, and that for the duration of your participation in the Beta Program, you warrant that you will comply in all respects with United States exports laws and regulations. This Agreement shall be governed by the laws of the State of California, without reference to its conflict of law principles. You consent to the jurisdiction of the federal and state courts sitting in the County of Santa Clara, State of California. This Agreement constitutes the entire agreement between you and BrightSign with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein. If any provision of this Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. You acknowledge that any breach of your obligations under this Agreement with respect to the proprietary rights of BrightSign will cause BrightSign irreparable injury for which there are inadequate remedies at law, and, therefore, BrightSign will be entitled to equitable relief in addition to all other remedies provided by this Agreement or available at law or in equity.