Evaluation Terms and Conditions
The parties to the Agreement are: (i) Bright Interactive Ltd, a company incorporated in England and Wales (registration number 03865036) having its registered office at 168 Church Road, Hove, East Sussex, BN3 2DL, UK ("we", and "us" and "our" shall be construed accordingly); and (ii) the person (natural or legal) who is our prospective customer evaluating our software and services under the Agreement ("you", and "your" and "yours" shall be construed accordingly).
If you decide to become a customer of ours, then we will enter into a new contract with you. These Terms and Conditions do not apply to customers who purchase our software or services.
1.1 In the Agreement:
"Agreement" means the agreement between the parties for the provision of the Hosted Services on a trial basis, incorporating these Terms and Conditions, and any amendments to the Agreement from time to time;
"Client Data" means all digital assets, files, works and materials uploaded to, stored on, processed using or transmitted via the Platform by you or on your behalf;
"Confidential Information" means, in respect of a party, any information disclosed by that party to the other party during the Term that at the time of disclosure is marked as confidential, is described as confidential by the disclosing party, or should have been understood as confidential by the recipient party (acting reasonably); and providing that the Client Data shall be your Confidential Information and any third party service provider contracts that we supply to you shall be our Confidential Information;
"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, for the period during which it is in force and applicable to the Personal Data, Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
"Effective Date" means the date upon which you expressly accept these Terms and Conditions during the process of signing up to evaluate the Hosted Services;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected;
"Hosted Services" means the Asset Bank functionality on the Platform, enabling you to upload, tag, organise, store, search, manipulate, access and download digital files;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights;
"Permitted Purposes" means evaluating the Hosted Services in a non-live environment, including uploading, tagging, organising, storing, searching, manipulating, accessing, sharing and downloading digital files for evaluation purposes;
"Personal Data" means any personal data (as defined in the Data Protection Laws) that we process on your behalf under the Agreement;
"Platform" means the hardware, system software, server software, database software and application software that we use to provide the Hosted Services, whether shared or dedicated;
"Services" means all the services provided or to be provided by us to you under the Agreement, including any Hosted Services;
"Term" means the term of the Agreement;
"Terms and Conditions" means these terms and conditions, including any variations from time to time in accordance with Clause 14.3; and
"Third Party Services" means any hosted or cloud service owned and operated by a third party that may transmit data to and/or from the Hosted Services under a contract or arrangement between you and the relevant third party.
2.1 The Agreement will come into force on the Effective Date.
2.2 The Agreement will continue in force indefinitely, unless and until terminated in accordance with the express provisions of these Terms and Conditions.
3 Trial of Hosted Services
3.1 Subject to the other provisions of this Clause 3, we hereby grant to you a non-exclusive licence to use the Hosted Services on the Platform for the Permitted Purposes via:
a) any supported web browser; and
b) the API for the Hosted Services,
in each case during the Term.
3.2 Your use of the Hosted Services must not exceed any user limitations, storage resources limitations and non-storage resource limitations that we may implement or specify from time to time. We may use technical measures to enforce those limitations.
3.3 Except to the extent mandated by applicable law or expressly permitted in the Agreement or in any reseller agreement between us and you, the licence granted under Clause 3.1 is subject to the following prohibitions:
a) you must not frame or otherwise republish or redistribute the Platform or Hosted Services;
b) you must not modify or alter, or attempt to modify or alter, the Platform or Hosted Services;
3.4 All Intellectual Property Rights in the Platform and Hosted Services shall, as between the parties, be our exclusive property.
3.5 We give no guarantees, warranties or other commitments in relation to the availability of the Hosted Services.
3.6 For the avoidance of doubt, you have no right to access the object code or source code of the Platform or Hosted Services, either during or after the Term.
4.2 Any support that we do provide to you shall be provided subject to the exclusions and limitations of liability and warranties set out in the Agreement.
5.1 You must provide to us such co-operation as is reasonably necessary to enable us to perform our obligations under the Agreement.
6 Client Data
6.1 All the Intellectual Property Rights in Client Data will remain your property and the property of your licensors, subject to Clause 6.2.
6.2 You grant to us a non-exclusive licence to store, copy and otherwise use Client Data on and in relation to the Platform for the purposes of operating the Platform, providing the Services, fulfilling our obligations under the Agreement and exercising our rights under the Agreement. The exercise of our rights under this licence is subject to our obligations under Clause 9 in respect of Personal Data.
6.3 You warrant to us that Client Data, and its use by us in accordance with the terms of the Agreement, will not:
a) breach any laws, statutes, regulations or legally binding codes;
b) infringe any person's Intellectual Property Rights or other legal rights; or
c) give rise to any cause of action against you or us or any third party,
in each case in any jurisdiction and under any applicable law.
7 Integrations with Third Party Services
7.1 The supply of Third Party Services shall be under a separate contract or arrangement between you and the relevant third party. We do not contract to supply the Third Party Services and are not a party to any contract for, or otherwise responsible in respect of, the provision of any Third Party Services.
7.2 The use of some features of the Hosted Services may depend upon you enabling and agreeing to integrations with Third Party Services.
7.3 You shall have the opportunity to consent to or refuse integrations with Third Party Services.
7.4 We may remove, suspend or limit any Third Party Services integration at any time in our sole discretion.
7.5 You acknowledge that:
a) the integration of Third Party Services may entail the transfer of Client Data to the relevant Third Party Services; and
b) we have no control over, or responsibility in respect of, any disclosure, modification, deletion, export or other use of Client Data by any third party resulting from any integration with any Third Party Services.
7.6 You warrant to us that the transfer of Client Data to a provider of Third Party Services in accordance with this Clause 7 will not infringe any person's legal or contractual rights and will not put us in breach of any applicable laws (including the Data Protection Laws).
7.7 Save to the extent that the parties expressly agree otherwise in writing and subject to Clause 11.1:
a) we give no warranties or representations in respect of any Third Party Services; and
b) we will not be liable to you in respect of any loss or damage that may be caused by any Third Party Services or any provider of Third Party Services.
8.1 Each party must:
a) keep the other party's Confidential Information strictly confidential;
b) not disclose the other party's Confidential Information to any person without the other party's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in the Agreement;
c) use the same degree of care to protect the confidentiality of the other party's Confidential Information as it uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care; and
d) act in good faith at all times in relation to the other party's Confidential Information.
8.2 Notwithstanding Clause 8.1, a party's Confidential Information may be disclosed by the other party to that other party's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.
8.3 No obligations are imposed by this Clause 8 with respect to a party's Confidential Information if that Confidential Information:
a) is known to the other party before disclosure under the Agreement and is not subject to any other obligation of confidentiality;
b) is or becomes publicly known through no act or default of the other party; or
c) is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.
8.4 The restrictions in this Clause 8 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.
8.5 The provisions of this Clause 8 shall continue in force indefinitely following the termination of the Agreement.
9 Personal Data and the General Data Protection Regulation
9.1 The parties agree that:
a) the Personal Data to be processed under the Agreement may consist of: (i) names, email addresses and other account-related data; and (ii) any information comprised in the digital assets and metadata processed by the Hosted Services; and
b) the Personal Data shall relate to: (i) individuals holding accounts in the Hosted Services; and (ii) other persons whose data is comprised in the digital assets and metadata processed by the Hosted Services.
9.2 You warrant to us that:
a) all of the Personal Data supplied by you to us shall fall within the categories specified in Clause 9.1;
b) the Personal Data has been and shall be collected in accordance with the Data Protection Laws; and
c) you have the legal right to disclose the Personal Data to us (and, where such disclosure is based upon consent, have retained evidence of such consent).
a) we will act only on documented instructions from you in relation to the processing of the Personal Data (which instructions are set out in the Agreement and in any additional documents agreed by the parties) unless required to do so by applicable law (in which case we shall inform you of that legal requirement, unless such information is prohibited by applicable law on important grounds of public interest);
b) we will only process the Personal Data for the purposes of providing the Hosted Services, performing our obligations under the Agreement and exercising our rights under the Agreement;
c) the processing of the Personal Data by us shall take place only during the Term, subject to the express derogations elsewhere in the Agreement;
d) we have in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of the Personal Data and against loss or corruption of the Personal Data, including those measures specified in our security policy as published on our website from time to time;
e) save to the extent caused by your failure to comply with Clause 9.2, we will process the Personal Data in compliance with the Data Protection Laws;
f) we shall not appoint or utilise any sub-processor of the Personal Data without your prior specific or general authorisation, and we will notify you at least 30 days in advance of any change of sub-processor with respect to any general authorisation by updating the list of sub-processors in the Asset Bank Help Centre (and we may also notify you by email if you have subscribed to our sub-processor email notification service); and if you object to any such change, you may terminate the Agreement on at least 14 days' written notice to us, expiring before the end of that 30-day period;
g) we shall ensure that each contract between us and any sub-processor of the Personal Data contains equivalent data protection obligations to those set out in the Agreement;
h) subject to applicable law, we will not transfer or permit the transfer of the Personal Data to any place outside the UK or EEA without your prior written consent; and
i) we shall maintain written records of our Personal Data processing activities in accordance with the requirements of the Data Protection Laws.
9.4 You hereby give to us the following general authorisations to appoint sub-processors with respect to the processing of the Personal Data:
a) authorisation to the appointment of any third-party hosting services providers;
b) authorisation to the appointment of any third-party connectivity and electronic communications service providers;
c) authorisation to the appointment of any data transfer service providers; and
d) authorisation to the appointment of any document and file processing or transformation service providers.
Details of appointed processors are set out in the Asset Bank Help Centre. You acknowledge that some of our appointed sub-processors are multinational corporations with facilities in jurisdictions around the world, and hereby consent to the transfer of Personal Data outside the UK and EEA to or by sub-processors, providing that: (i) the principal database for the Hosted Services shall be located within the UK or EEA, unless you expressly agree otherwise in writing; (ii) all such transfers shall be made only for the purpose of providing services to you; and (iii) and all such transfers shall be protected by appropriate safeguards in accordance with the Data Protection Laws.
9.5 We shall notify you in accordance with the Data Protection Laws, using the contact details set out in this Agreement or any alternative breach notification contact details you supply to us, promptly and in any case within 24 hours of becoming aware of the issue, if:
a) any of the Personal Data is lost or destroyed, or becomes damaged, corrupted or unusable;
b) we receive any complaint or regulatory notice which relates to the processing of any of the Personal Data; or
9.6 We shall co-operate with you in relation to:
a) any request from you to amend or delete any of the Personal Data;
b) any complaint or regulatory notification relating to the processing of any of the Personal Data;
c) any request from a data subject for access to any of the Personal Data or relating to the exercise of the data subject's legal rights in relation to the Personal Data; and
d) any measures taken by you that are reasonably necessary to ensure that you comply with your own obligations under Data Protection Laws,
in each case at your cost and expense.
9.7 We shall ensure that access to the Personal Data is limited to those of our personnel who have a reasonable need to access the Personal Data to enable us to perform our duties under the Agreement; any access to the Personal Data shall be limited to such part or parts of the Personal Data as are strictly necessary.
9.8 We shall take reasonable steps to ensure the reliability of any of our personnel who have access to the Personal Data. Without prejudice to this general obligation, we shall ensure that all relevant personnel are informed of the confidential nature of the Personal Data, are subject to confidentiality obligations in relation to the Personal Data, have undertaken training in the laws relating to handling Personal Data, and are aware of our duties in respect of that Personal Data.
9.9 Each party shall upon request make available to the other party all such information as may be necessary to demonstrate their compliance with the Data Protection Laws and the provisions of this Clause 9.
9.10 We shall upon request make available to you all such information as may be necessary to facilitate the carrying out of an audit of our compliance with the Data Protection Laws and the provisions of this Clause 9. We may charge you at our standard time and materials rates for any work performed at your request when fulfilling our obligations under this Clause 9.10.
9.11 In the event of changes to the Data Protection Laws that affect the terms of the Agreement, the parties shall act reasonably to agree any necessary changes to the Agreement.
9.12 Within 30 days following the termination of the Agreement, we shall, if requested by you at least 5 days before the end of that period, provide to you a copy of the Personal Data; and, unless applicable law requires otherwise, we shall delete the Personal Data from our systems and storage media at the end of the period of 4 months following termination.
10 Acknowledgements and limited warranties
10.1 You acknowledge that complex software is never wholly free from defects, errors and bugs, and we give no warranty or representation that the Hosted Services will be wholly free from such defects, errors and bugs.
10.2 You acknowledge that complex software is never wholly free from security vulnerabilities, and we give no warranty or representation that the Hosted Services will be wholly free from such vulnerabilities.
10.3 You acknowledge that, subject to the express warranties set out in the Agreement:
a) we do not warrant or represent that the Hosted Services will be compatible with any other application, program or software;
b) we will not and do not purport to provide any legal, taxation or accountancy advice under the Agreement or in relation to the Hosted Services and (except to the extent expressly provided otherwise) we do not warrant or represent that the Hosted Services will not give rise to any civil or criminal liability on the part of you or any other person; and
c) we may from time to time make changes to the hardware, software, services and other technical means by which the Hosted Services are provided.
10.4 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement.
11 Limitations and exclusions of liability
11.1 Nothing in the Agreement will:
a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
c) limit any liability of a party in any way that is not permitted under applicable law; or
d) exclude any liability of a party that may not be excluded under applicable law.
11.2 The limitations and exclusions of liability set out in this Clause 11 and elsewhere in the Agreement:
a) are subject to Clause 11.1; and
b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.
11.3 Neither party will be liable to the other party for any loss of business, contracts or commercial opportunities.
11.4 Neither party will be liable to the other party for any loss of or damage to goodwill or reputation.
11.5 We will not be liable to you in respect of any loss or corruption of any Client Data.
11.6 Neither party will be liable to the other party for any losses arising out of a Force Majeure Event.
11.7 Neither party's liability to the other party in relation to any event or series of related events will exceed the greater of:
a) GBP 1,000; and
b) the total amount paid and payable by you to us under the Agreement during the 12 month period immediately preceding the event or events giving rise to the claim, providing that this Clause 11.7 shall not apply to any liability of a party under Clause 6.3, 8 or 9.
11.8 Neither party's aggregate liability to the other party will exceed GBP 5,000.
12.1 Either party may terminate the Agreement by giving to the other party written notice of termination.
13 Effects of termination
13.1 Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 8, 9, 11, 13 and 14.
13.2 Termination of the Agreement will not affect either party's accrued liabilities and rights as at the date of termination.
13.3 Subject to Clause 9.12, at any time following the termination of the Agreement, we may delete from our computer systems all Client Data. You acknowledge that, if you have not retrieved Client Data from the Platform before termination, you may lose Client Data.
13.4 Notwithstanding Clause 13.3 but subject to Clause 9.12, you acknowledge that we may retain Client Data in our systems after the date of termination, whether for technical reasons, legal reasons or otherwise; and the licence set out in Clause 6.2 shall continue after termination to the extent necessary for us to exercise our rights under this Clause 13.4.
14.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
14.2 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
14.3 The Agreement may be varied as follows:
a) we may vary the Agreement by giving to you at least 7 days' written notice of the variation; and
b) the Agreement may be varied by a written instrument signed or otherwise agreed by or on behalf of each party.
14.4 We may freely assign the entirety of our contractual rights and obligations under the Agreement to any group company of ours or to any successor to all or a substantial part of our business. Save as provided in this Clause 14.4, neither party may without the other party's prior written consent assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any contractual rights or obligations under the Agreement.
14.5 The Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate or rescind, or agree any amendment, waiver, variation or settlement under or relating to, the Agreement are not subject to the consent of any third party.
14.6 Subject to Clause 11.1:
a) the Agreement constitutes the entire agreement between the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and
b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
14.7 The Agreement will be governed by and construed in accordance with English law; and the courts of England and Wales will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.