Efficacy ESS STANDARD EDITION AGREEMENT
This Efficacy ESS Standard Edition Agreement (the “Agreement”) is entered into by and between Brio Technologies (P) Ltd.,Hyderabad - India (“Brio”) and the entity agreeing to the terms herein (“Customer”). This Agreement will be effective as of the date you click the “I Accept” button below (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these terms and conditions; (ii) that you have read and understand this Agreement; and (iii) that you agree, on behalf of the party that you represent, to this Agreement. If you don't have the legal authority to bind, please do not click the “I Accept” button below. This Agreement governs Customer's access to and use of the Service (as defined below).
1. Definitions.
? 1.1 “Customer Domain Name(s)” means the domain name(s) owned by Customer and approved by Brio for use with the Service (as defined below).
? 1.2 “End Users” mean Customer's end users who utilize any of the Efficacy ESS.
? 1.3 “End User Account” means Brio-hosted accounts provided to Customer's End Users through the Service for the purpose of enabling such End Users to use the Service. Brio may limit the number of available End User Accounts it provides to End Users of Customer at its sole discretion.
? 1.4 “Service” means the services referred to by Brio as “Efficacy ESS for Your Domain” or “Efficacy ESS” that are hosted by Brio and described in this Agreement, which may include without limitation, the Hosted Communication Services and the Start Page Service.
? 1.5 “Hosted Services” means the hosted services provided by Brio hereunder that provide Customer with Brio-hosted End User Accounts for its End Users for the purpose of (i) enabling End Users to for Employee Self Service (ii) any other functionality, products and/or services that Brio may provide from time to time as part of the Hosted Communication Services, as applicable.
? 1.6 “Start Page” means a Brio-hosted web page provided through the Start Page Service.
? 1.7 “Start Page Service” means the service that provides Customer with a Brio-hosted web page for its End Users that enables certain customization by the Customer through the administrative console and enables further customization by each End User with an End User Account.
2. Hosted Services. Brio will use commercially reasonable efforts to provide the Hosted Services to Customer during the term of this Agreement. Customer agrees that Brio may serve advertisements (“Ads”) in connection with the Hosted Services. Subject to the terms and conditions of this Agreement, Customer may use the Service to (a) provide End User Accounts to its End Users, and (b) administer such End User Accounts through the provided administrative console. Both parties acknowledge that an End User is a customer of both Customer and Brio. Information collected by Brio may be stored and processed in any country in which Brio or its agents maintain facilities. By using the Hosted Services, Customer consents to any such transfer, processing and storage of information. Customer is solely responsible for monitoring, responding to, and otherwise processing emails sent to the “abuse” and “postmaster” aliases for Customer Domain Name(s); however, Customer acknowledges and agrees that Brio may also monitor, respond to or otherwise process emails sent to such aliases for Customer Domain Name(s). Customer agrees that any revenue generated by Brio from the Ads or otherwise derived by Brio from the Hosted Services will be retained by Brio and not be subject to any revenue sharing.
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5. Customer Obligations.
5.1 Customer Administration of the Services. Customer will receive a password and account to use in connection with administering the End User Accounts of its End Users. Customer is responsible for maintaining the confidentiality of the password and account, designating those employees who are authorized to access the account, limiting the scope of such authorization to performance of duties under this Agreement, and for all activities that occur under Customer's account. Customer agrees to immediately notify Brio of any unauthorized use of, or access to, the Service, Customer's password or account, or of any other breach of security. Brio cannot and will not be liable for any loss or damage from Customer's failure to comply with these security obligations. Customer acknowledges and agrees that under no circumstances will Brio be liable in any way for any acts or omissions of Customer or any End User including any damages of any kind incurred as a result of such acts or omissions.
5.2 Deployment of Services. Furthermore, Brio reserves final approval authority with respect to the means used by Customer to deploy each component of the Service, and in the event Brio disapproves of such deployment, Brio shall have the right, upon notice to Customer, to suspend any continued use of the Service until such time Customer implements adequate corrective modifications as reasonably required and determined by Brio.
5.3 Usage Policies and Limits. Customer shall comply with any usage policies and limits concerning use of the Service as requested by Brio from time to time, including without limitation: (i) Brio's technical and implementation requirements; (ii) Brio's brand treatment guidelines for the Service; (iii) Brio website terms of use and privacy policies; and (iv) Brio requirements for data security. Brio shall have the right to change, suspend or discontinue any aspect of the Service at any time, including hours of operation and availability of any Service feature, without notice and without liability. Brio shall have the right to impose limits on certain features or restrict access to parts or all of the Service without notice and without liability.
5.4 Permissible Use. Customer agrees to use the Service only for purposes that are legal, proper and in accordance with this Agreement and any applicable policies or guidelines. Customer agrees that it will not engage in any activity that interferes with or disrupts the Service or servers or networks connected to the Service. In addition to this agreement, Customer's use of some specific Brio services is governed by the policies or guidelines that are presented to Customer when Customer signs up for or accesses those services and which are specifically incorporated into this Agreement. Customer agrees to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control. A Customer in a country outside of the United States agrees to additionally comply with any local rules regarding online conduct and acceptable content, including laws regulating the export and reexport of data to and from the United States or such other country.
6. Restrictions. Except as expressly permitted by Brio, Customer shall not alter, delete or modify any attributions included within the Service. Customer agrees not to alter the Service or any information transmitted through the Service to End Users. Except as expressly set forth in this Agreement, Customer shall not transmit, display or otherwise make available (or allow End Users or any other third party to transmit or make available) the Service or the content thereof to any third party.
7. Technical Support Services. Customer is responsible for responding to any questions and complaints by End Users or other third parties relating to Customer or its End Users’ use of the Service, with such support services to be provided at Customer's own expense. Subject to the terms and conditions of this Agreement, Brio shall provide technical support services to Customer's designated administrator in accordance with Brio's support guidelines then in effect for the Service. Prior to making any support request to Brio, Customer shall first use reasonable efforts to fix any error, bug, malfunction, or network connectivity defect on its own without any escalation to Brio. Thereafter, Customer's designated administrator may submit a written request for technical support through the online help center which is accessible at URL as Brio may provide. Technical support services for End Users of the Service are provided by Brio solely through the URL as Brio may provide.
8. Confidential Information. In connection with performance of its obligations hereunder, a party (the “Discloser”) may disclose to the other party (the “Recipient”) certain information that the Discloser considers confidential and/or proprietary (“Confidential Information”) including, but not limited to, tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; (d) business information, including operations, planning, marketing interests, and products; (e) any bugs, defects, security problems, and other issues relating to the Service; and (f) the terms of this Agreement and the discussions, negotiations and proposals related thereto. The Recipient will only have a duty to protect Confidential Information disclosed to it by the Discloser: (1) if it is clearly and conspicuously marked as “confidential” or with a similar designation; (2) if it is identified by the Discloser as confidential and/or proprietary before, during, or promptly after presentation or communication; or (3) if it is disclosed in a manner in which the Discloser reasonably communicated, or the Recipient should reasonably have understood under the circumstances that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used. Customer acknowledges that the source and object code of the software underlying the Service (the “Software”) remains a confidential trade secret of Brio and/or its licensors and that Customer is not entitled to review either the object code or the source code of the Software for any reason at any time. Recipient shall not disclose or cause to be disclosed any Confidential Information of Discloser, except to those employees, agents, representatives, or contractors of the parties who require access to the Confidential Information to perform under this Agreement (“Authorized Personnel”) and who are bound by written agreement not to disclose third-party confidential or proprietary information disclosed to Recipient, or as such disclosure may be required by law or governmental regulation. Furthermore, Recipient agrees to be responsible for any act and/or omission of any Authorized Personnel in breach of this Section. Recipient shall protect the Confidential Information of Discloser by using the same degree of care, but no less than a reasonable degree of care, that it uses to protect its own confidential information of a like nature to prevent its unauthorized use, dissemination or publication to any unauthorized third parties. A party's Confidential Information shall not include information that: (i) is or becomes publicly available through no act or omission of Recipient; (ii) was in the Recipient's lawful possession prior to the disclosure and was not obtained by Recipient either directly or indirectly from the Discloser; (iii) is lawfully disclosed to the Recipient by a third party without restriction on Recipient's disclosure, and where Recipient was not aware that the information was the confidential information of Discloser; or (iv) is independently developed by the Recipient without violation of this Agreement. Recipient may disclose Confidential Information solely as needed to comply with a court order, subpoena, or other government demand (provided that Recipient first used all commercially reasonable efforts to notify Discloser and to give Discloser the opportunity to challenge such court order, subpoena, or government demand except in situations where Recipient is prevented, per lawful government request, from disclosing the existence of the court order, subpoena, or other government demand). Results, analyses or other information generated in benchmarking and/or performance testing of the Service shall be Confidential Information of Brio and shall, at the request of Brio, be provided to Brio. Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section 8. A Recipient shall have a duty to protect Confidential Information during the term of this Agreement and for a period of five (5) years thereafter.
9. Ownership; Restricted Use. Brio and its licensors shall own all right, title and interest, including without limitation all Intellectual Property Rights (as defined below) relating to the Service (and any derivative works or enhancements thereof), including but not limited to, all software, technology, information, content, materials, guidelines, and documentation. Customer shall not acquire any right, title, or interest therein, except for the limited use rights expressly set forth in the Agreement. Any rights not expressly granted herein are deemed withheld. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. Brio does not own third party content used as part of the Service, including the content of communications appearing on the Service. Title, ownership rights, and Intellectual Property Rights in and to the content accessed through the Service are the property of the applicable content owner and may be protected by applicable copyright or other law. Customer agrees not to, or to allow others to: (i) adapt, translate, or modify the Software; (ii) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to discover the source or object code of the Software, except to the extent applicable laws specifically prohibit such restriction; (iii) copy the Software; (iv) use the Service for High Risk Activities as described in Section 13; or (v) sublicense, loan, sell, rent or lease the Service, or any component thereof. Any and all third party binary or source code included in each portion of the Service may be used only in conjunction with such portion of the Service, and such use shall be subject to all the terms and conditions of this Agreement. THE SERVICE OR ANY PORTION THEREOF MAY NOT BE USED, COPIED, TRANSFERRED, OR MODIFIED EXCEPT AS EXPRESSLY PERMITTED BY THIS AGREEMENT.
10. Brand Features. As used in this Agreement, “Brand Features” shall mean the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time. Except as expressly allowed by Brio, any Brand Features, copyright, or other proprietary notices, legends, symbols, or labels appearing on or in the Service provided to Customer shall not be removed or altered. Subject to the terms and conditions of this Agreement, Customer grants to Brio a limited, nonexclusive and nonsublicensable license during the term of this Agreement to display those Customer Brand Features expressly authorized for use in this Agreement, solely for the purposes expressly set forth herein. Notwithstanding anything to the contrary, Customer may revoke the license granted herein to use Customer's Brand Features upon providing Brio with written notice thereof and a reasonable period of time to cease such usage. Except to the limited extent expressly provided in this Agreement, neither party grants, and the other party shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Brand Features of the first party; and all rights not expressly granted herein are deemed withheld. All use by Brio of Customer Brand Features (including any goodwill associated therewith) shall inure to the benefit of Customer and all use by Customer of Brio Brand Features (including any goodwill associated therewith) shall inure to the benefit of Brio. Customer shall not challenge or assist others to challenge the Brio Brand Features or the registration thereof, nor shall Customer attempt to register any Brio Brand Features or domain names that are confusingly similar to those of Brio.
11. PR. Customer agrees not to issue any public announcement regarding the existence or content of this Agreement without Brio's prior written approval. Brio may (i) include Customer's Brand Features in presentations, marketing materials, and customer lists (which includes, without limitation, customer lists posted on Brio's web sites and screen shots of Customer's implementation of the Service) and (ii) issue a public announcement regarding the existence or content of this Agreement. Upon Customer's request, Brio will furnish Customer with a sample of such usage or announcement.
12. Representations and Warranties. Each party represents and warrants that it has full power and authority to enter into the Agreement. Customer represents, warrants, and covenants that: (i) Customer has and will maintain all rights, authorizations and licenses that are required to permit Customer to use the Service; (ii) the execution and delivery of this Agreement, and the performance by Customer of its obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which such party or any of its affiliates are a party or violate any rights of any third parties arising therefrom; and (iii) Customer shall comply with all laws, regulations and ordinances applicable to or otherwise connected with Customer's use of the Service.
13. Warranty Disclaimer. CUSTOMER UNDERSTANDS AND AGREES THAT EACH SERVICE MAY CONTAIN BUGS, DEFECTS, ERRORS AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM FAILURES. CONSEQUENTLY, THE SERVICE INCLUDING ALL CONTENT, SOFTWARE (INCLUDING ANY UPDATES OR MODIFICATIONS TO THE SOFTWARE), FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED “AS IS” AND ANY USE THEREOF SHALL BE AT CUSTOMER'S OWN RISK. Brio AND ITS LICENSORS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT. Brio ASSUMES NO RESPONSIBILITY FOR THE PROPER USE OF THE SERVICE. Brio AND ITS LICENSORS MAKE NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY THE SERVICE. Brio MAKES NO REPRESENTATION THAT Brio (OR ANY THIRD PARTY) WILL ISSUE UPDATES OR ENHANCEMENTS TO THE SERVICE. Brio does not warrant that the functions contained in the Service will be uninterrupted or error free. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. IN THAT EVENT, TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE EFFECTIVE DATE. THE SERVICE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USES SUCH AS THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL OR LIFE SUPPORT SYSTEMS, WHERE THE FAILURE OF THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”).
14. Indemnification. Customer shall indemnify, defend and hold harmless Brio, its subsidiaries and other affiliates, and its and their officers, directors, owners, agents, co-branders or other partners, employees, information providers, licensors and licensees (collectively, the “Indemnified Parties”) from and against any and all liability, costs, losses, damages, claims and demands, including without limitation attorneys fees and costs incurred by the Indemnified Parties, arising out of or related to (i) Customer Domain Name(s) and/or Customer Brand Features; (ii) Customer's use of the Service; (iii) Customer's disclosure of End User information; (iv) any Customer Content; (v) any breach or non-compliance by Customer of this Agreement, any of Brio's policies, or Customer's representations or the provision of warranties contained herein; and (vi) any End User's use of the Service.
15. Limitation of Liability. IN NO EVENT WILL Brio OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, AND INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED (INCLUDING BUT NOT LIMITED TO USE, MISUSE, INABILITY TO USE, OR INTERRUPTED USE) AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT AND WHETHER OR NOT Brio WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; OR FOR ANY CLAIM ALLEGING INJURY RESULTING FROM ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE OR DESTRUCTIVE PROPERTIES OF THE SERVICE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY, OR WILLFUL MISCONDUCT TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FUTHERMORE, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER. IN NO EVENT SHALL Brio'S LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED FIFTY DOLLARS ($50). THE SERVICE IS PROVIDED WITHOUT CHARGE FOR BETA TESTING PURPOSES ONLY AND THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
16. Termination. Customer may discontinue use of the Service at any time. Except as provided in Section 18, Brio reserves the right at any time and from time to time to modify the Service (or any part thereof) with or without notice. Customer agrees that Brio may at any time and for any reason terminate this Agreement and/or terminate the provision of all or any portion of the Service. Notwithstanding the foregoing, Brio will provide at least thirty (30) days notice to Customer prior to terminating or suspending the hosted service (if provided to Customer); provided that such hosted service may be terminated immediately if (i) Customer has breached this Agreement or (ii) Brio reasonably determines that it is commercially impractical to continue providing such hosted service in light of applicable laws. Customer agrees that Brio shall not be liable to Customer, any End User, or any third party for any modification, suspension, or termination of the Service. Sections 8 (Confidentiality), 9 (Ownership; Restricted Use), 12 (Representations and Warranties), 13 (Warranty Disclaimer), 14 (Indemnification), 15 (Limitation of Liability), 16 (Termination), 19 (Information Requests) and 20 (Miscellaneous) shall survive the expiration or termination of this Agreement.
17. Modification. Except as provided in Section 18, Brio reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Service, at any time, by posting the new agreement at URL as Brio may provide. Customer is responsible for regularly reviewing any updates to this Agreement. Any changes or modifications to this Agreement will become binding (i) when made in a writing executed by both parties, (ii) by Customer's online acceptance of updated terms, or (iii) after Customer's continued use of the Service after such terms have been updated by Brio.
18. Fees. Provided that Brio continues to offer the Service to Customer, Brio will continue to provide a version of the Service (with substantially the same services as those provided as of the Effective Date) free of charge to Customer; provided that such commitment: (i) does not apply to the Domain Service described in Section 4 above; and (ii) may not apply to new opt-in services added by Brio to the Service in the future. For sake of clarity, Brio reserves the right to offer a premium version of the Service for a fee.
19. Miscellaneous. Customer agrees that Brio may provide Customer with notices, including those regarding changes to this Agreement, by email, regular mail, or postings on Brio services. Customer may not assign or otherwise transfer its rights or delegate its obligations under this Agreement, without the prior written consent of Brio. Any attempted assignment in derogation hereof shall be null and void. Customer agrees that there shall be no third party beneficiaries to this Agreement. This Agreement shall be governed by and construed in accordance with the laws of India applicable therein, excluding its choice of law provisions, and Customer and Brio agree to submit to the personal and exclusive jurisdiction of the courts located in Hyderabad, Andhra Pradesh. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances. If any provision of this Agreement is found void and unenforceable, it shall be replaced to the extent possible with a provision that comes closest to the meaning of the original provision. The unenforceability of any provision, however, shall not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. THIS AGREEMENT CONSTITUTES A COMPLETE INTEGRATION OF ALL UNDERSTANDINGS BETWEEN THE PARTIES AND IS THE ENTIRE AGREEMENT BETWEEN CUSTOMER AND Brio RELATING TO THE SERVICE AND ALL TERMS HEREIN. THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY SPECIFICALLY REFERENCED UNIFORM RESOURCE LOCATOR (AS SUCH URL MAY BE MODIFIED FROM TIME TO TIME, AS PROVIDED HEREIN) SHALL TAKE PRECEDENCE OVER ANY PURCHASE ORDER, WEB SITE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR OTHER DOCUMENT WHETHER FORMALLY REJECTED BY Brio OR NOT, AND ANY CONFLICTING, INCONSISTENT, OR ADDITIONAL TERMS CONTAINED THEREIN SHALL BE NULL AND VOID.