BrightCrowd Customer Service Agreement

Last updated October 1, 2019

The following terms and conditions, together with the applicable Purchase Order entered into by and between the customer (“Customer”) and Qollaboration, Inc., a Delaware corporation operating under the name BrightCrowd (“BrightCrowd”, and together with Customer, each a “Party” and collectively the “Parties”) form an agreement (the “Agreement”) by and between BrightCrowd and Customer regarding Customer’s use of the BrightCrowd Services set forth on the Purchase Order (the “Services”). In the event of a conflict between the Purchase Order and this Agreement, the Purchase Order shall control.

1. Provision of Services

1.1 Access.

Subject to Customer’s payment of the Fees and compliance with the terms of this Agreement, BrightCrowd will provide access to the Services to the individuals or groups of individuals designated by the Customer (“Authorized Users”).

1.2 Support Services.

BrightCrowd will provide Customer with support services as requested and in a reasonable timeframe.

1.3 Hosting.

BrightCrowd shall, at its own expense, provide for the hosting of the Services, provided that nothing herein shall be construed to require BrightCrowd to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by any Authorized User or any other user to provide access from the Internet to the Services.

1.4 No Third-Party Servicer Status.

If the Customer is an educational institution, Customer agrees that this Agreement does not purport to render BrightCrowd a Third Party Servicer as that term is defined at 34 C.F.R. §§ 668.2, 668.25 and BrightCrowd shall not undertake any work pursuant to this Agreement inconsistent with this Section 2.4. Customer further agrees that it shall not report BrightCrowd as a Third Party Servicer to the U.S. Department of Education or any other governmental agency or accrediting body.

2. Fees

Customer shall pay BrightCrowd the fees set forth in the Purchase Order (the "Fees"). Following the execution of the Purchase Order, Fees shall be due within thirty (30) days’ of receipt. Fees may be paid by check, ACH, credit card or other form of payment mutually agreeable to the parties. Non-payment or late payment of undisputed fees is a material breach of this Agreement. Customer shall pay interest on any overdue balance at the rate of 1 ½% per month or the maximum permitted by law, whichever is less, plus all expenses of collection. All taxes and other governmental charges (except for income taxes), if any, imposed on Customer payments hereunder shall be deemed to be in addition to the Fees charged, and borne solely by Customer.

3. Intellectual Property

3.1 License Grant.

Subject to the terms and conditions of this Agreement, BrightCrowd grants to Customer a non-exclusive, non-sublicensable, non-transferable license, solely for Customers use in accordance with the limitations (if any) set forth in the Purchase Order, to access and use the Services in accordance with the Terms and Conditions set forth on the BrightCrowd website.

3.2 Restrictions.

Customer agrees that it will not, nor will Customer cause or permit any Authorized User or other party to, (a) allow any third party to access the Services, except as expressly allowed herein; (b) modify, adapt, alter or translate the Services; (c) sublicense, lease, rent, loan, distribute, transfer or otherwise allow the use of the Services for the benefit of any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except as permitted by law; or (e) create derivative works based on the Services.

3.3 Ownership.

Except for the license granted by BrightCrowd under this Agreement, BrightCrowd owns all right, title and interest (including, but not limited to, all copyright, patent, trademark and trade secret rights) in and to the Services.

4. Customer Content, User Content, and Responsibilities

4.1 Customer Content.

As part of using the services, Customer may provide content or information related to the Customer’s organization or any of its people (“Customer Content”). Customer Content may include information that can be used to identify specific individuals and may include, but is not limited to, name, email address, physical address, occupation, education, title, skills, interests and images (collectively, “Personal Information”).

4.2 User Content.

As part of using the services, Customers invite individuals (“Users”) to share Personal Information (“User Content”). Customer acknowledges that in connection with adding their User Content, Users agree to BrightCrowd’s Terms and Conditions and Privacy Policy, which governs the use of their User Content and permits BrightCrowd to display their designated Personal Information and share it with the Customer. Customer further acknowledges that User Content is controlled by the User who created the content and Customer cannot add, modify or delete User Content without that User’s content.

4.3 License; Ownership.

Customer hereby grants BrightCrowd a non-exclusive, worldwide, royalty-free, fully-paid and transferable license (a) to use the Customer Content as necessary for purposes of providing the Services; and (b) to use Customer’s trademarks, service marks, and logos as required to provide the Services. As between the parties, Customer owns all right, title and interest in the Customer Content.

4.4 Customer Warranty.

Customer represents and warrants that (a) prior to using the Services in connection with any individual end user, Customer shall have obtained the consent of such end user to contact such end user via the Services in such form as required to comply with applicable law; (b) that its use of the Services will comply with all applicable requirements of the Federal Trade Commission, Federal Communications Commission and U.S. Department of Education; and (c) the Customer Content shall not (i) infringe any copyright, trademark, or patent right; (ii) misappropriate any trade secret; (iii) be deceptive, libelous, obscene, pornographic or unlawful; (iv) contain any viruses, worms or other malicious computer programming codes intended to damage BrightCrowd’s system or data; or (v) otherwise violate any privacy or other right of any third party.

4.5 Authorized User Access.

Customers may permit any Authorized Users to access and use the features and functions of the Services as contemplated by this Agreement. Customer may provide access to the Services either through a universal access code (“UAC”) or through a personal access code (“PAC”) that will be delivered to an email address designated by the Customer. Customer is solely responsible for maintaining the confidentiality of access codes and BrightCrowd will not be liable for any activities undertaken by anyone using Customer’s UAC an individual User’s PAC. Customer will immediately notify BrightCrowd of any unauthorized access or any other breach of security relating to the Services known to Customer.

4.6 Customer Responsibility for Access, Content and Security.

Unless otherwise specified on the Purchase Order, BrightCrowd is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.

5. Warranties & Disclaimers

5.1 Limited Warranty.

BrightCrowd represents and warrants to Customer that the Services will operate free from material errors that substantially impact the use of the Services. Should a material error arise, Customer must notify BrightCrowd in writing detailing the steps to reproduce the error. Once notification is provided, BrightCrowd will promptly address the error and if necessary update the Services to fix the error.

5.2 Disclaimer.

THE LIMITED WARRANTY SET FORTH IN SECTION 5.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, THE SERVICES ARE PROVIDED "AS IS," AND BRIGHTCROWD MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. BRIGHTCROWD DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.

6. Limitation of Liability

EXCLUDING EACH PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN IN RESPECT OF THIRD-PARTY CLAIMS, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS PERFORMANCE HEREUNDER AND (B) IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER AS A RESULT OF ANY CLAIM ARISING UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.

7. Confidentiality; Privacy

7.1 Confidentiality.

During the Term, each party ("Disclosing Party") may provide the other party ("Receiving Party") with Confidential Information. "Confidential Information" shall include all proprietary or confidential information relating to a Disclosing Party that is disclosed or otherwise supplied in confidence to the Receiving Party under this Agreement. Confidential Information does not include any information that the Receiving Party can establish: (a) was known to the Receiving Party prior to receiving the same from the Disclosing Party, free of any restrictions; (b) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; (c) is acquired by the Receiving Party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Receiving Party. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Disclosing Party’s Confidential Information to Authorized Users (with respect to Customer as Receiving Party) or to those employees who have a need to know such Confidential Information to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon the expiration or termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.

7.2 Student Privacy.

In the instance where the Customer is an educational institution, BrightCrowd acknowledges that use of the Services may involve the disclosure by the Customer of information that personally identifies a student who is enrolled, or was previously, enrolled at the Customer’s institution (“Confidential Student Information”). This includes the student’s name, the name of the student’s family members, the student’s (or student’s family’s) address, telephone number, email address, date of birth, place of birth, and other information that alone or in combination would reasonably allow a person or entity to identify the student with reasonable certainty.

BrightCrowd agrees that it will not use or re-disclose Confidential Student Information except in compliance with the Family Education Rights and Privacy Act ("FERPA") (20 U.S.C. § 1232g; 34 C.F.R. Part 99) and all applicable state and federal laws. Customer acknowledges that BrightCrowd is a "school official" with a legitimate educational interest in receiving Confidential Student Information under FERPA and BrightCrowd agrees that it will comply with the requirements of 34 C.F.R. § 99.33 regarding its use and redisclosure of Confidential Student Information. Customer agrees and consents to BrightCrowd’s use of Directory Information so long as such use complies with FERPA. Customer acknowledges that it is responsible for notifying BrightCrowd that a student has opted-out of the Customer’s "Directory Information Policy." For purposes herein, “Directory Information” shall mean the following Confidential Student Information: student’s name (including audio pronunciation), the name of the student’s parents or family members, the student’s (and student family’s) address, telephone number, email address, gender pronoun, course of study, expected completion date, photographs, and any other information that is considered directory information under the Customer’s “Directory Information Policy.”

7.3 Data Security.

BrightCrowd agrees that it will store and process Confidential Information, including Confidential Student Information, in accordance with customary industry standards.

8. Indemnification

8.1 Indemnification.

Each party (an “Indemnifying Party”) shall indemnify and defend the other Party (an “Indemnified Party”) and its trustees, officers, directors, employees, agents and affiliates from and against any and all third party claims, demands, suits, fees, judgments, damages, losses, costs and expenses (collectively, “Claims”), including reasonable attorneys’ fees and costs incurred in responding to such Claims, that the Indemnified Party may suffer or incur proximately caused by: (i) Indemnifying Party’s gross negligence or willful misconduct; (ii) Indemnifying Party’s breach of this Agreement or violation of any applicable law; or (iii) content or services provided to the Indemnified Party by the Indemnifying Party infringing or violating any patent, copyright, trademark, or other intellectual property right of a third party or misappropriating any trade secret, provided that no indemnification shall be available in the case of this clause (iii) to the extent the infringement is caused by: (x) the use of the Services in combination with other products or services in a way not contemplated by this Agreement, if the infringement would not have occurred but for such combination or (y) an alteration or modification of the Services not directed or provided by or with the consent of the Indemnifying Party, if the infringement would not have occurred but for such alteration or modification. If any portion of the Services becomes, or in BrightCrowd’s opinion is likely to become, the subject of a claim of infringement, BrightCrowd shall, at BrightCrowd’s option, either: (A) procure for Customer the right to continue using the Services; (B) replace the Services with non-infringing services which do not materially impair the functionality of the Services; or (B) modify the Services so that they become non-infringing. If the foregoing options are not available on commercially reasonable terms and conditions, Customer shall have the option to terminate this Agreement.

8.2 Indemnification Procedure.

In the event of any claim for indemnification hereunder, the Indemnified Party shall promptly notify Indemnifying Party in writing of any such Claim and shall cooperate with the Indemnifying Party at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall control the defense and investigation of the Claim and shall employ counsel of its choice that is reasonably acceptable to the Indemnified Party to handle and defend the Claim, at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall not settle any action in a manner that adversely affects the Indemnified Party’s rights without the Indemnified Party’s prior written consent, not to be unreasonably withheld. The Indemnified Party’s failure to perform any obligations under this Section shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of the failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

9. Term and Termination

9.1 Term.

This Agreement commences on the date of the Purchase Order and shall continue for the period of time specified in the Purchase Order (the "Term") unless earlier terminated under Section 9.2.

9.2 Termination.

Either party may terminate this Agreement immediately upon written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within (30) days after its receipt of written notice of such breach.

9.3 Effect of Termination.

Upon termination of this Agreement the licenses granted to either party shall immediately terminate. At the mutual agreement of the parties, BrightCrowd may continue to make the Services available to Customer’s Authorized Users on a limited basis. Termination shall not relieve Customer’s obligation to pay all charges accrued before the effective date of termination and Customer shall not be entitled to any refund for amounts paid prior to the Termination. Sections 3.3, 4.6, 5, 6, 7, 8, 9.3, 10 and 11 will survive the expiration or termination of this Agreement.

10. Governing Law and Venue

This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without reference to conflicts of laws principles. Both parties expressly agree that any action relating to this Agreement shall exclusively be brought in San Francisco, California, and both parties irrevocably consent to the jurisdiction of the state and federal courts located in San Francisco, California. Each party expressly waives any objection that it may have based on improper venue or forum non-conveniens to the conduct of any such suit or action in any such court. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its use of the Services hereunder.

11. Miscellaneous

If requested by BrightCrowd, Customer agrees to cooperate in good faith with BrightCrowd on a press release following execution of this Agreement and agrees to allow BrightCrowd to list Customer on BrightCrowd’s website (using Customer’s name and/or Customer’s logo, as determined by BrightCrowd). The parties are independent contractors and nothing in this Agreement shall be deemed to create the relationship of partners, joint venturers, employer-employee, master-servant, or franchisor-franchisee between the parties. Neither party is, or will hold itself out to be, an agent of the other party. Neither party is authorized to enter into any contractual commitment on behalf of the other party. These Terms and Conditions, together with the attached Purchase Order(s), contain the entire agreement of the parties and supersedes any prior or present understanding or communications regarding its subject matter, and may only be amended in a writing signed by both parties. In the event any provision of this Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect. Neither party shall assign this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to its successor pursuant to a merger, consolidation or sale of substantially all of its assets related to this Agreement, provided it promptly notifies the non-assigning party in writing of the assignment and the assignee agrees in writing to be bound by the terms of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strikes, failure of suppliers, fires, floods or earthquakes. The use of the Services is subject to U.S. export control laws and may be subject to similar regulations in other countries. Customer agrees to comply with all such laws. Any notice given under this Agreement shall be in writing and shall be sent via overnight mail by a nationally recognized express delivery service addressed to the address and the signatory set forth on the Purchase Order. There are no third-party beneficiaries to this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an original and both of which shall be taken together and deemed one instrument.