USER LICENSE AGREEMENT
This User License Agreement (the “EULA”) constitutes a legal agreement between you (“User”) and the Brightpearl entity identified in the Enterprise License Agreement (as defined below) (“Brightpearl”), by which Brightpearl grants User access to Brightpearl’s retail management software platform solution for the management of customer relationship and retail reference data, and any additional services provided in connection there with collectively, the “Service”) according to the terms and conditions set forth herein.
BY CLICKING “I AGREE,” USER IS AGREEING TO THIS EULA. IF USER DOES NOT AGREE TO THE TERMS OF THIS EULA, USER IS NOT PERMITTED TO ACCESS OR OTHERWISE USE THE SERVICE. BY ACCESSING, OR OTHERWISE USING THE SERVICE, INCLUDING ANY UPDATES, UPGRADES, OR NEWER VERSIONS, USER AGREES TO BE BOUND BY THE TERMS OF THIS EULA, REGARDLESS OF WHETHER USER SELECTS THE “I ACCEPT” OR “YES” BUTTON.
1. Governing Terms. User’s use of the Service is subject to existing terms under a Enterprise License Agreement (the “Enterprise License Agreement”) as executed by [Client] (“Client”). To the extent there is any conflict between this EULA (as is or as modified) and any of the Enterprise License Agreement, the terms of the applicable Enterprise License Agreement will control and supersede this EULA. User agrees and acknowledges that:
(i) User’s rights under this EULA are granted to User as an agent of Client, and that User has no rights to access or use the Service other than as granted to Client in the Enterprise License Agreement; (ii) that User has no direct claims regarding its use or inability to use the Service and that Brightpearl will have no direct liability to User under this EULA or the Enterprise License Agreement; and (iii) that User has been granted the opportunity to read the Enterprise License Agreement as executed by Client and has either (x) read and understood the terms thereof or (y) waived such right, understanding that User will remain bound by the terms thereof regardless. All capitalized terms not defined herein shall have the meanings set forth in the Enterprise License Agreement.
2. Service. Subject to the terms and conditions of this EULA and timely payment of all required fees hereunder, Brightpearl grants to User, a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access the Service and interact with the features and functionality available via the Service for User’s internal business operations only.
3. Restrictions & Requirements.
3.1. User Login Credentials. User is responsible for all activities conducted under User’s username and password (“Access Credentials”). As of the date User agrees to the terms of this EULA (the “Effective Date”), Brightpearl will provide access to the Service based on the Access Credentials User selects. Access Credentials cannot be shared or used by anyone but User. User will be responsible for the confidentiality and use of User’s Access Credentials. User will use all commercially reasonable efforts to prevent unauthorized access to or use of the Service and will promptly notify Brightpearl of any unauthorized access or use of the Service and any loss or theft or unauthorized use of User’s Access Credentials.
3.2. Restrictions. User will ensure that all access and use of the Service by User is in accordance with the terms and conditions of this EULA. Except as expressly authorized herein, User is prohibited from and will not cause or permit any:
3.2.1. copying or modification of the Service;
3.2.2. creating derivative works based on all or any portion of the Service;
3.2.3. removal or modification of any notice of any patent, copyright, trademark or other proprietary rights that appear on or in the Service;
3.2.4. reverse engineering, decompilation, translation, disassembly or discovery of the source code of all or any portion of the Service;
3.2.5 reverse engineering of the protocols and undocumented APIs;
3.2.5. using the Service in any manner that infringes the rights, including intellectual property rights, of Brightpearl or any third party;
3.2.6. attempting to circumvent the security systems of the Service;
3.2.7. attempting to gain unauthorized access to services, materials, other accounts, computer systems or networks connected to any Brightpearl server;
3.2.8. attempting to use the Service for any purposes other than those intended by Brightpearl, as determined by Brightpearl in its sole discretion;
3.2.9. interrupting, destroying or limiting the functionality or disruption of any software, hardware, telecommunications, networks, servers or other related equipment;
3.2.10. distribution, disclosure, marketing, leasing, reselling, assigning, loaning, sublicensing, renting, pledging, offering as security or transferring to any third party, including User’s customers, the Service, or use of the Service;
3.2.11. merging of the Service into another product;
3.2.12. disclosure to any third party of the results of any testing or performance benchmarks of the Service; or
3.2.13. use of the Service, any Updates or any upgrades after termination of this EULA.
3.3. Covenant Not to Compete. In addition to the limitations on use of the Service as set forth above, User will not, either on its own account or for any other person, firm, company, government or entity, directly or indirectly, including, without limitation, through partnerships, alliances, business arrangements or other channels use any information obtained from the Service to develop, produce, make, market, offer for sale, sell, import or distribute any applications, products, systems or services that compete with the Service or provide identical or similar functionality to the functionality as provided by the Service, or disclose any information relating to the foregoing to any third party. Any breach of this Section 3 will result in the automatic termination of the EULA retroactive to the date that such breach first occurred.
3.4. Compliance with Law. User will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with this EULA, including without limitation the export laws and regulations of the United States and other applicable jurisdictions in using the Service. Without limiting the foregoing, (i) User represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) User will not permit others to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) User will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which User is located.
3.5. Consequences of Non-Compliance. User’s failure to comply with the terms of this EULA may result in the suspension or termination of User’s account and/or access to the Service, and may subject User to civil and criminal penalties.
4. Term and Termination.
4.1. Term. This EULA will commence as of the Effective Date and will remain in effect until terminated by User or Brightpearl.
4.2. Suspension; Termination of User Access. Brightpearl may suspend or terminate User’s access to the Service: (i) immediately and without notice in the event User breaches this EULA, or for any other cause, in Brightpearl’s sole discretion; and (ii) upon thirty (30) days’ written notice for convenience. In addition to the foregoing, this EULA shall automatically immediately terminate upon the termination or expiration of the Enterprise License Agreement.
4.3. Survival. The provisions of the sections of this EULA that, by their nature, are intended to survive the expiration or termination of this EULA will so survive.
5. Modifications; Discontinuation of Service. Brightpearl may make modifications to the Service or individual features and functionality of the Service from time to time and will use commercially reasonable efforts to notify User of any material modifications. The modified EULA will be effective when Brightpearl: (i) sends an e-mail to User’s e-mail address; (ii) posts a notice to the administrator of the User’s account; or (iii) posts a notice on the home page or launch screen of the User’s user interface. By accessing, or otherwise using the Service, including any Updates, upgrades, or newer versions, after this EULA has been updated, User agrees to be bound by the updated terms thereof. Brightpearl further reserves the right to discontinue offering the Service upon termination of this EULA. User agrees that Brightpearl will not be liable to User or any third party for any such modification or discontinuation of the Service.
6. Brightpearl Intellectual Property Rights. All rights, title and interest in and to the Service (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Service provided or developed by Brightpearl) are owned exclusively by Brightpearl or its licensors. Except as provided in this EULA, the rights granted to User do not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. User grants Brightpearl a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Service (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by User related to the operation or functionality of the Service. Any rights in the Service or Brightpearl’s intellectual property not expressly granted herein by Brightpearl are reserved by Brightpearl. Brightpearl’s name, trademarks service marks, logos and product and service names are marks of Brightpearl (the “Brightpearl Marks”). User agrees not to use or display or use the Brightpearl Marks in any manner without Brightpearl’s express prior written permission.
7. Data Security; Processing
7.1. Security. Brightpearl will maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of the Service. User further acknowledges and understands that User data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Without limiting Brightpearl’s applicable obligations under this Section 7.1 or Section 8, Brightpearl is not responsible for any User data that is delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Brightpearl, including, but not limited to, the Internet and User’s local network.
8. Confidentiality. User acknowledges that the Service is and contains confidential and proprietary information of Brightpearl and/or its suppliers. User agrees to hold the Service in strict confidence and will not disclose, allow access to or otherwise make available the Service, or any part thereof, to any other party without the prior written consent of Brightpearl. User will use reasonable means, but not less than that used to protect its own confidential and proprietary information, to safeguard access to the Service. The confidentiality obligations hereunder will survive the termination or expiration of this EULA.
9. Governing Law and Dispute Resolution.
9.1. For the purposes of this clause 9: (i) clauses 9.2 – 9.4 apply (and clause 9.5 does not apply) if the contracting Brightpearl entity as identified in the Enterprise License Agreement is Brightpearl Inc; and (ii) if the contracting Brightpearl entity as identified in the Enterprise License Agreement is not Brightpearl Inc, clause 9.5 applies (and clauses 9.2 – 9.4 do not apply). 9.2. Arbitration. Notwithstanding any contrary provision of this EULA, all disputes, claims, controversies and matters relating to or in connection with this EULA (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in the State of New York before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
9.3. Jurisdiction and Venue. Subject to the above arbitration provisions, the parties agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with this EULA or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Service (collectively, “Disputes”) in the federal or state courts located in the State of New York and each party agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that Brightpearl retains the right to submit a Dispute to any court of competent jurisdiction. Brightpearl also may seek injunctive or other equitable relief for breach of this EULA in any court of competent jurisdiction wherever located. User consents to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
9.4. Prohibition of Class and Representative Actions and Non-Individualized Relief. USER AGREES THAT USER MAY BRING CLAIMS AGAINST BRIGHTPEARL ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVES THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. FURTHER, UNLESS BOTH PARTIES OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
9.5 Governing Law & Jurisdiction. This EULA and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this EULA or its subject matter or formation (“Claim”) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any Claim.
10. General Provisions
10.1. Notices. User’s e-mail address for communication and notice purposes relating to this EULA will be the e-mail address provided by User’s account administrator during account registration or as subsequently designated by User’s account administrator. User may contact Brightpearl at [email protected]. Brightpearl may provide any and all notices, statements, and other communications in English to User through either e-mail, posting on the Service (or other electronic transmission) or by mail or express delivery service. A copy of all notices will be sent to the primary e-mail address associated with the Client’s Brightpearl account.
10.2. Entire Agreement. This EULA incorporates by reference the Enterprise License Agreement and Processing Agreement, and together constitute the entire understanding between User and Brightpearl and are intended to be the final and entire expression of their agreement.
10.3. Assignment. Neither party may assign this EULA without written consent of the other, except that Brightpearl may assign without consent to a related entity or the successor of all or substantially all of Brightpearl’s business or assets to which this EULA relate. This EULA will inure to benefit and bind the parties hereto, and their successors and assigns.
10.4. Third-Party Beneficiaries. There are no third-party beneficiaries to this EULA.
10.5. Severability. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision will be eliminated or limited to the minimum extent necessary so that this EULA will otherwise remain in full force and effect.
10.6. Waiver. A waiver of any breach under this EULA should not constitute a waiver of any other breach or future breach.
10.7. Force Majeure. Neither party will be liable for loss, delay, nonperformance to the extent resulting from any force majeure event, including, but not limited to, acts of God, strike, riot, fire, explosion, flood, earthquake, natural disaster, terrorism, act of war, civil unrest, criminal acts of third parties, failure of the Internet, governmental acts or orders or restrictions, failure of suppliers, labor stoppage or dispute (other than those involving Brightpearl employees), or shortage of materials, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible and any delivery date will be extended accordingly.
10.8. Headings. The section headings used in this EULA are included for reference purposes only and will not affect the meaning or interpretation of this EULA in any way.