(date of last revision: 2 April 2012)
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, 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.
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 a Statement of Work ("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.
2.1 BrightTALK shall supply the Services specified in a SOW subject to the terms of this Agreement. BrightTALK shall not be obliged to supply any services that are not specified in a 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 Where a SOW specifies that BrightTALK will provide Customer with Leads, BrightTALK will provide such leads generated from the live event within 48 hours of the live broadcast of the Sponsored Event and will continue to provide Customer with Leads from post-Sponsored Event viewings until it has provided Customer the number of Leads specified in the Statement of Work. If six months after a Sponsored Event is first broadcast, the Customer has not received the number of Leads specified in the SOW, Customer, as its sole remedy, will be entitled to a credit equal in value to the Lead shortfall ("the Credit"). Such Credit may be used to offset future charges for any BrightTALK services, including subsequent sponsorship packages (but is not redeemable for cash or retroactive application).
3.1 Customer will pay to BrightTALK all charges (the "Fees") specified in a SOW, and in clause 3.2, and on the payment terms set out therein. Where no payment terms are specified in a SOW, BrightTALK may invoice: (a) quarterly in advance for recurring monthly Fees, 30 days prior to commencement of the relevant quarter; and (b) monthly for all other Fees, on the final day of the month in which the Services were provided and all Fees will be due for payment within thirty (30) days after the invoice date. Unless otherwise specified, Fees set out in a SOW do not include any sales or other applicable taxes for the Services and Customer agrees to pay these, 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. Customer will pay the Capacity Charge for each minute of Customer Content viewed by Users above the Capacity Limit.
3.3 Many BrightTALK services require BrightTALK to commit resources and incur costs in advance of service delivery to Customer and for this reason, although care will be taken to limit the cost in the event of cancellation, BrightTALK reserves the right to charge a charge a cancellation fee equivalent to 75% of the Fees otherwise due in the event Customer cancels (i) a Service comprising a Sponsored Event less than 60 days prior to the scheduled live event date; (ii) a Service involving video production less than 20 days prior to the scheduled filming date; and (iii) any other Service at any time.
3.4 Any Services supplied by BrightTALK at the request of the Customer which are not specified or not priced in a SOW or which are expressed to be chargeable on a time and material basis will be charged and/or invoiced at BrightTALK's then standard time and materials rates. The rates are determined by the level of skill and experience of each individual involved in supplying the relevant services.
3.5 BrightTALK may charge Customer for all reasonable travel time, travel, accommodations and subsistence expenses incurred in providing any Services. Where reasonable, all such expenses will be estimated in advance in the relevant SOW.
3.6 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 time being.
4.1 Ownership Rights
Each party retains any and all pre-existing 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. This Agreement shall not be construed in any manner as transferring any rights of ownership of or license to the foregoing, and/or to the features or information therein, except as expressly set out in this Agreement. Under no circumstances will this Agreement be construed as granting, by implication, estoppel or otherwise, a license to any Intellectual Property 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, BrightTALK hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sub licensable, worldwide license to use the Services solely for the purposes described in a SOW. All rights not expressly granted to Customer are reserved by BrightTALK and its licensors. Except as expressly permitted by BrightTALK, Customer shall not: (a) license, sublicense, sell, resell, rent, 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 law) or create derivative works based upon the Services or the underlying technology; (c) use any data mining, robots or similar data gathering or extraction methods or (d) use any of the Services other than for its intended purpose. 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 herein), royalty-free, non-exclusive, worldwide license to perform such acts in connection with Customer Content as is necessary to provide the Services. The foregoing license includes, without limitation, permission for BrightTALK to (a) transmit, copy in its original form or in the form of an encoded work, store and archive Customer Content and to perform such other acts with respect to Customer Content as are necessary from time to time to provide the Services; (b) use Customer name and Customer's webcast presenter's name, voice, likeness, persona and performance in connection with any Customer Content that Customer posts, provides or participates in, in connection with the Services; (c) offer or provide open access to Public Customer Content on or through brighttalk.com (or other website wholly-owned and/or operated by BrightTALK) and/or sub-domains thereof (d) aggregate, publicly display, distribute, modify, create derivative works, or reproduce Public Customer Content; (e) grant sublicenses to Public Customer Content to enable it to be embedded and displayed on third party websites; (f) to distribute, transmit, and/or display Public Customer Content on brighttalk.com or via such technologies as are or may in the future be supported by BrightTALK from time to time including without limitation, the internet and/or wireless transmission; (g) display advertisements in connection with or alongside any display of Public Customer Content; and (h) to perform such other acts with respect to Public Customer Content as are necessary from time to time to provide the BrightTALK Services. 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 and all sublicenses thereto shall terminate automatically when Customer Content is deleted from BrightTALK's production servers.
4.4 License to Marks
Subject to the terms and conditions of this Agreement, Customer grants BrightTALK a non-transferable (except as provided herein), non-exclusive, royalty-free right to reproduce and display Customer logos, trademarks, trade names and other similar identifying material or intellectual property (the "Marks") that Customer provides solely for the purposes described herein, and to grant sublicenses thereto on the same terms and conditions to third parties that embed Public Customer Content or a Sponsored Event on their websites, to the extent necessary in connection with the Services. This license and all sublicenses thereto shall terminate automatically when all Customer Content is deleted from BrightTALK's production servers.
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 (a) 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; and (b) the Services will be free of material defects. BrightTALK makes no other warranties, express or implied, statutory or otherwise, including those of merchantability and fitness for a particular purpose. In the event the Service has a material defect, Customer will tell BrightTALK as soon as reasonably possible and must give BrightTALK a reasonable time to remedy the problem, which BrightTALK shall use commercially reasonable endeavors to do.
5.3 Customer specifically represents and warrants that any Customer Content provided directly or indirectly by Customer, and its distribution and/or publication, does not and shall not infringe or misappropriate any third party's rights, nor shall doing so violate any right of any person, including without limitation any Intellectual Property Rights. Customer represents and warrants that it owns or has obtained all necessary rights and licenses with respect to Customer Content. Customer agrees that as between Customer, on the one hand, and BrightTALK, on the other hand, any obligation to pay third party license Fees as a result of distribution of Customer Content pursuant to this Agreement shall be Customer's obligation and not the obligation of BrightTALK. BrightTALK does not make any warranties to Users or third parties regarding the validity of the Customer Content or that Customer Content is provided by a valid rights holder. In the event that BrightTALK becomes aware that Customer Content has been provided by a person who is not a valid rights holder, BrightTALK may, at its discretion, disable and/or terminate the publication of such Customer Content.
6.1 This Agreement commences on the date it is accepted by Customer by the execution of a SOW, and shall continue in full force and effect until all SOW 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 30 days prior to the end of the previous term.
6.3 Either party may terminate this Agreement if (a) the other party breaches any of its material obligations under this Agreement and such breach is not cured within thirty (30) days of receipt of notice from the non-breaching party, or (b) the other party becomes insolvent, bankrupt, liquidated or is dissolved or ceases substantially all of it business.
6.4 BrightTALK reserves the right to remove or suspend any Customer Content if BrightTALK, in its sole discretion, believes it is or may be directly or indirectly harmful to Users, to BrightTALK or its subsidiaries, affiliates or to other third parties, or for any conduct by Customer that violates any laws or regulations.
6.5 Except as provided in 6.6 below, upon termination, within 30 days of receiving Customer's written request to remove Customer Content, BrightTALK will suspend User access to Customer Content and after a further 90 days have lapsed BrightTALK will delete Customer Content from its production servers. BrightTALK reserves the right to remove Customer Content immediately upon termination.
6.6 Following termination, Customer Content published in connection with a Sponsored Event will remain accessible to Users viewing the archived Sponsored Event.
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).
7.3 In the course of BrightTALK providing Services to Customer, it may be necessary from time to time for BrightTALK to have access to Personal Information belonging to or retained by Customer and for BrightTALK to process that Personal Information on behalf of Customer. In relation to any transfer and processing of Personal Information as referred to above, Customer will ensure that it is fully and lawfully entitled to transfer the relevant Personal Information to BrightTALK so as to allow BrightTALK to lawfully process the Personal Information in accordance with the relevant SOW on behalf of Customer. BrightTALK will process the Personal Information only in accordance with the terms of the relevant SOW and any instructions given by Customer from time to time and will take appropriate security measures in respect of Personal Information. BrightTALK will not share any Personal Information with third parties except: (a) BrightTALK may share Personal Information with its subsidiaries, affiliated companies or other trusted businesses or persons, acting under a confidentiality agreement, for the purpose of processing Personal Information on BrightTALK's behalf; (b) if required to do so to comply with any applicable law, regulation, legal process or enforceable government request; and (c) if the party concerned has given consent to BrightTALK to share their Personal Information.
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 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 law or regulation, including but not limited to data and privacy laws; and (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 use, possession, transmission, publication or broadcast by Customer of any Service provided by BrightTALK infringes the Intellectual Property Rights of any third party except to the extent that such infringement relates to 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 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.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES PROVIDED BY BRIGHTTALK 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.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, 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 WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (C) ANY OF THE PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (D) ERRORS OR DEFECTS WILL BE CORRECTED, OR (E) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UNDER NO CIRCUMSTANCES SHALL BRIGHTTALK OR ITS LICENSORS BE HELD LIABLE TO ANYONE ON ACCOUNT OF USE OR MISUSE OF, RELIANCE ON, OR INABILITY TO USE THE SERVICES, OR FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT, TECHNOLOGY, ELECTRICAL POWER FAILURES, NONPERFORMANCE OF THIRD PARTIES OR GOVERNMENTAL ACTIONS.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES OR THE CONTENT EXCEED THE COMPENSATION CUSTOMER PAYS OR OWES, IF ANY, TO BRIGHTTALK FOR ACCESS TO OR USE OF THE SERVICES IN THE TWELVE MONTHS PRECEDING THE CIRCUMSTANCES THAT GAVE RISE TO THE CLAIM.
In any jurisdiction that does not permit limitations of liability, the foregoing limitation may not apply.
The party that Customer is contracting with under this Agreement, who notices should be sent to, the governing law of this Agreement and exclusive court jurisdiction to which both parties to this Agreement consent, depend on the location of the Customer and are set out below:
|Customers located in:||Are contracting under this Agreement with:||Notices should be in writing. delivered by hand or mail and addressed to:||The governing law shall be:||The courts having exclusive jurisdiction are:|
|The USA, Canada, a country in Central or South America, the Caribbean, Asia||BrightTALK Inc, a Delaware corporation||If to BrightTALK Inc.: 501 Folsom Street, 2nd Floor, San Francisco, CA 94105, USA
If to Customer: to the address provided in the relevant SOW
|California, USA||San Francisco, California, USA|
|Europe, the Middle East or Africa||BrightTALK Ltd, a UK registered company||If to BrightTALK Ltd: 16 St Martin's Le Grand, London, EC1A 4NA, UK; and If to Customer: to the address provided in the relevant SOW||English||England|
13.1 Change of Control
Neither this Agreement nor any of the rights or obligations of either party may be assigned or transferred without the prior written consent of the other party, unless assigned 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. An assignment by either party based on any other circumstances requires the consent of the other party which consent shall not be unreasonably withheld.
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.
BrightTALK will have in place and will maintain professional indemnity and other relevant insurance cover 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 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.
In this Agreement, the following definitions shall apply:
(i) "BrightTALK" means either BrightTALK Ltd or BrightTALK Inc. according to which entity Customer is contracting with as set out in clause 12;
(ii) "brighttalk.com" means a website that is wholly-owned and/or operated by BrightTALK and/or sub-domains thereof;
(iii) "Capacity Limit" is expressed as a number of minutes per 12 month period and is defined as (a) the number of webcasts (including video upload) that Customer is entitled to publish as Customer Content during a 12 month period as set out in a SOW or multiple SOW, multiplied by 9000 minutes; or (b) if Customer is entitled to publish unlimited Customer Content, the number of unlimited Customer Content packages Customer has purchased multiplied by 600,000 minutes, per 12 month period, and in all cases for contracts of less than 12 months duration the Capacity Limit is adjusted downwards pro-rata;
(iv) "Capacity Charge" means USD 0.01 per minute of viewing if Customer is contracting with BrightTALK Inc. and GBP 0.01 per minute of viewing if Customer is contacting with BrightTALK Ltd according to clause 12;
(v)"Customer" means the individual, company or other legal entity that is accepting this Agreement, and any entity which directly or indirectly controls, is controlled by, or is under common control with the Customer. "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;
(vi) "Customer Content" means all webcasts and other content that is published within a player served by 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;
(vii) "Leads" means, for a registrant to a Sponsored Event who has opted to allow their details to be shared with Customer, the registrant name, job title, organization name, country, telephone number and email address;
(viii) "Intellectual Property Rights" or "Intellectual Property" means patents, copyrights, trademarks, trade secrets, and other proprietary rights including the right of publicity and privacy rights, however such rights arise and under whatever law;
(ix) "Private Customer Content" means Customer Content that is displayed only on Customer's nominated website(s);
(x) "Public Customer Content" means Customer Content that is accessible by any User and which Customer has invited BrightTALK to promote on its own site and other social media sites. Public Customer Content specifically excludes Private Customer Content;
(xi) "Personal Information" means personal details of any User, including name, job title, organization name, country of residence, telephone number, email address, and details regarding User viewing habits as they relate to the Services.
(xii) "Rate" means Federal Funds Rate if Customer is contracting with BrightTALK Inc, and HSBC Base Rate if Customer is contracting with BrightTALK Ltd;
(xiii) "Services" means the services specified in a Statement of Work;
(xiv) "Sponsored Event" means a webcast or group of webcasts or other materials sponsored by Customer as set out in a Statement of Work;
(xv) "Statement of Work" means a proposal signed by both parties setting out the Services to be provided by BrightTALK;
(xvi) "User" means someone that has registered as a subscriber on the BrightTALK technology platform.
If Customer believes that anything on BrightTALK infringes upon 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: email@example.com
In accordance with the Digital Millennium Copyright Act (DMCA), BrightTALK has adopted a policy of limiting access to the Site and/or terminating, in appropriate circumstances and at BrightTALK's sole discretion, Users or account holders who are deemed to be infringers.