BRIGHTPEARL ENTERPRISE LICENSE
AGREEMENT TERMS AND CONDITIONS
These Enterprise License Agreement Terms & Conditions (the “Terms & Conditions”) govern the license terms described in the Enterprise License Agreement Master Order Form (the “Order Form”) entered into between the Brightpearl entity (“Brightpearl”), and the client, as each is identified in the Order Form (“Client”) effective as of the effective date set forth therein (the “Effective Date”). Together, the Order Form, Terms & Conditions, Statement of Work (Schedule 2), and EU Data Processing (Schedule 3) Agreement constitute a single agreement (collectively, this “Agreement”).
1.1. “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Service.
1.2. “API” means the application programming interface made available by Brightpearl to the Client that facilitates the incorporation of certain aspects of the Services into the Client’s existing software and systems.
1.3. “Client Data” means all information uploaded, submitted or transmitted to or through the Service by or on behalf of Client, excluding Brightpearl Data.
1.4. “Brightpearl Data” means information collected or generated by or on behalf of Brightpearl for purposes of providing, measuring or improving Brightpearl’s products and services, including for benchmarking performance, or preparing statistics or system metrics, and all information developed or derived from its provision of the Service or rendering of the Professional Services, including any information derived from Client Data or appearing in solely an anonymized and/or aggregated form. For the avoidance of doubt, “Brightpearl Data” shall not include any personally identifiable information of any User or the contents of any data or documents uploaded, submitted or transmitted by or on behalf of any User.
1.5. “Brightpearl Materials” means the Service, Documentation, Brightpearl Data, Work Products and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Brightpearl or any subcontractor in connection with the Service or otherwise comprise or relate to the Service.
1.6. “Customization” means services provided by Brightpearl to Client to create, develop, implement and maintain additional features and functionalities to the Service in accordance with the SOW.
1.7. “Documentation” means any manuals, instructions, or other documents or materials available at https://help.brightpearl.com/hc/en-us, that Brightpearl provides or makes available to Client which describe the functionality, components, features or requirements of the Service, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof, as applicable to the Service purchased in the Order Form.
1.8. “Implementation” means services provided by Brightpearl to Client to allow the Service to integrate with and be useable through Client’s existing software and hardware environment in accordance with the SOW.
1.9. “Professional Services” means collectively the Implementation, Customization and any training services provided by Brightpearl to Client as stated in the SOW.
1.10. “Service” means access to Brightpearl’s online retail management software platform solution for the management of customer relationship and retail reference data, and any additional services as identified in the Order Form.
1.11. “SOW” means the Statement of Work attached hereto as Schedule 2.
1.12. “Users” means individuals for which Client has procured subscriptions to the Service, as identified to Brightpearl, or as otherwise set forth in the Order Form. Users may include, but are not limited to Client’s employees, consultants, contractors and agents.
1.13. “Work Product” means all services, programs, systems, data and materials, in whatever form, first provided, produced or created by or for Brightpearl as a result of, or related to, performance of the Professional Services under the SOW.
2. Terms of Service.
2.1. Service. Subject to the terms and conditions of this Agreement and during the Term (as defined below), Brightpearl shall make the Service available to be used by Client’s Users solely for the internal business operations of Client. The terms of this Agreement shall also apply to updates, and upgrades subsequently provided by Brightpearl to Client. Brightpearl may update the features, functionality, and other aspects of the Service, including any related Documentation, from time to time in its sole discretion, as part of its ongoing efforts to improve the Service. Brightpearl has the right to accept or decline trial and paid account requests in its sole discretion with no obligation to detail the reasoning behind such decision.
2.2. License Details. Brightpearl shall provide the Service as set forth in the Order Form. The Order Form shall include at a minimum a listing of the Service being ordered and the associated fees. Except as otherwise provided in the Order Form, the Order Form is non-cancellable and shall be subject to the terms and conditions of this Agreement.
2.3. Service Usage and Data Storage. The Order Form sets forth the fees for designated levels of usage and data storage (each a “Service Allocation”), beginning with the fees payable by Client for the levels of usage and data storage in effect as of the Effective Date. Service Allocations are determined by the total annual gross merchant value and order volume of Client transactions passed through the platform. Brightpearl will use commercially reasonable efforts to notify Client in writing if Client has exceeded its then current Service Allocation. Client agrees that any usage in excess of its then-current Service Allocation will be charged for by Brightpearl at its then-current rates, and that Brightpearl will automatically reclassify Client’s Service Allocation and corresponding fee obligations to the appropriate Service Allocation effective at the beginning of the next Renewal Term. Client shall also have the option to increase its Service Allocation prior to the next Renewal Term, by contacting Brightpearl in writing. Except as stated in this Section, Client acknowledges that exceeding its then-current Service Allocation may result in service degradation for Client and other Brightpearl customers and agrees that Brightpearl has no obligation to permit Client to exceed its then-current Service Allocation
2.4. Professional Services. Brightpearl agrees to be available to Client to perform one or more projects involving Implementation, Customization and/or training on such terms and conditions as Brightpearl and Client may mutually agree (each project, a “Project”). Each Project will be described in the SOW, which will be effective when signed by both parties. The SOW will set forth the respective responsibilities of Brightpearl and Client for the respective Project. Such SOW will include at a minimum each of the following items whenever such item is applicable to the Project:
A scope of requirements and responsibilities of the specific Project;
The effective date and term of the Project;
The incorporation of this Agreement by reference;
Fees and forecasted expenses for the Project;
Payment terms for the Project;
Any additional or special terms and conditions.
Subject to the provisions of this Agreement, once the SOW has been approved, each party will carry out and complete its duties and responsibilities set forth in the SOW. If Brightpearl or Client requests modifications or enhancements to a Project, each such change will be described in an amendment to the SOW describing such modifications, enhancements or new development in appropriate detail and shall be effective upon signature by both parties. Client acknowledges and agrees that the Professional Services are based on Client’s representations and descriptions regarding their software and hardware environments, and that when preparing and rendering the Professional Services Brightpearl will rely on the SOW (which is prepared based on interviews and discussions with Client). Brightpearl shall not be liable for delays or amendments to the Professional Services to the extent they are caused by Client (such as inaccurate or incomplete descriptions or representations regarding the software and/or hardware environments in which Brightpearl is rendering Implementations and/or Customizations). Additional Customizations may require additional fees.
2.5. Free Trials. If Brightpearl determines Client is eligible for a free trial period to access the Service via the Brightpearl website or directly through the Brightpearl sales team, Brightpearl will make the Service available to Client free of charge until the earlier of either: (a) the expiration of the free trial period for which Client subscribed; or (b) the commencement date of any paid for Service requested by Client. Brightpearl reserves the right to refuse a free trial. From time to time additional terms may be applicable to a free trial period. Brightpearl will make any such additional terms and conditions available to Client and such terms shall be incorporated into, and shall form part of, this Agreement. Access to the Service will be suspended immediately on expiration of the free trial period for which Client has subscribed. To continue using the Service, Client must return to Brightpearl a signed copy of the Order Form prior to the expiry of the free trial period to guarantee uninterrupted and continuous access to, and use of, the Service.
2.6. Accuracy of Client’s Contact Information. Client shall provide accurate, current and complete information on Client’s legal business name, address, e-mail address and phone number, and maintain and promptly update this information if it should change.
2.7. E-mail and Notices. Except for legal notices, each party’s e-mail address for communication and notice purposes relating to this Agreement shall be the e-mail address set forth in the Order Form (or subsequent e-mail addresses as advised by the parties). Brightpearl may provide any and all notices, statements, and other communications in English to Client through either e-mail, posting on the Service (or other electronic transmission) or by mail or express delivery service. Upon account setup, Client may further designate additional contacts for various types of notices. In addition, Brightpearl may rely and act on all information, authorizations and instructions provided to Brightpearl from the e-mail address and/or Client administrators specified in the Order Form.
2.8. Service Control. Except as otherwise expressly provided in this Agreement, as between the parties Brightpearl has and will retain sole control over the operation, provision, maintenance, and management of the Brightpearl Materials.
2.9. 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 Client of any material modifications. Brightpearl further reserves the right to discontinue offering the Service, in whole or in part, upon 60 (sixty) days written notice to Client. Client agrees that Brightpearl shall not be liable to Client or any third party for any such modification or discontinuation of the Service. In the event of a modification or discontinuation that has a material, adverse impact on Client’s ability to use the Service, Client shall be entitled, as its sole and exclusive remedy, to terminate its subscription(s) to the affected Service, and receive a prorated refund of the subscription fees pre-paid by Client for the affected Service for the remaining portion of the Term, in accordance with Section 5.4
2.10. Users. Client acknowledges that, prior to being granted access to the Service, each User will be required to accept the terms of service applicable to Users at https://www.brightpearl.com/eula (the “End User License Agreement”). Client agrees that (i) Client shall be responsible for ensuring each User agrees to, and abides by the terms of, the End User License Agreement; (ii) Client assumes all liability for any failure of the foregoing; and (iii) Brightpearl shall not be liable to Client in connection with the failure or refusal by any such User to agree to accept the End User License Agreement. Further, Brightpearl reserves the right to modify the End User License Agreement with or without prior notice to Client. The modified terms will be effective when Brightpearl (i) sends an e-mail to an affected 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. In the event of a conflict between any End User License Agreement accepted by a User, and these Terms & Conditions, these Terms & Conditions will govern.
3. Restrictions. Client must not use the Service to act as a service bureau or otherwise provide an outsourced service, and may not rent, resell, sublicense, or permit the concurrent use of any Access Credentials, or time-sharing of the Service. Client shall not and shall not permit any User or other third party to (i) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service, or any algorithms or software used to operate the Service, or any part thereof or otherwise attempt to discover any source code or modify the Service in any manner or form, (ii) access or use the Service to circumvent or exceed Service account limitations or requirements, (iii) use the Service for the purpose of building a similar or competitive product or service, (iv) attempt to circumvent the authentication required to access the Service or other security measures of the Service (including without limitation permitting access to or use of the Service via shared Access Credentials, or another system or tool, the primary effect of which is to enable input of requests or transactions by other than authorized Users), (v) use the Service in a manner that is in violation of any third party rights of privacy or intellectual property rights, (vi) issue or participate in any press release or other public statement related to this Agreement or the Service without prior written consent of Brightpearl, (vii) publish, post, upload or otherwise transmit Client Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another, or (viii) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Service. Client will not input or share any Client Data to or through the Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Client agrees not to access the Service by any means other than through the interfaces that are provided by Brightpearl. Client shall not engage in any “mirroring” or “framing” of any part of the Service, or create hyperlinks to the Service which include Access Credentials and/or secure cookies.
4. Client Obligations. Client acknowledges that the successful deployment and continued operation of the Service is contingent on Client complying with certain dependencies set out in the Documentation and SOW and Brightpearl’s reasonable requirements made known to Client from time to time. Brightpearl is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement. Client is responsible for all activities conducted under its User Access Credentials, including as a result of any sharing of Access Credentials, or failure to adequately safeguard Access Credentials. Client shall comply with all applicable local, state, federal, and foreign law, treaties, regulations, and conventions (collectively, “laws”) in connection with this Agreement. Client shall comply with the export laws of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Client represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Client shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Client shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Client shall ensure that all Users access and use the Service only in accordance with the terms and conditions of this Agreement. Any action or breach of this Agreement by a User shall be deemed an action or breach by Client.
5. Term; Suspension/Termination
5.1. Term. This Agreement shall commence on the Effective Date and shall continue in effect for the initial period specified in the Order Form (the “Initial Term”). Thereafter, this Agreement shall automatically renew for periods specified in the Order Form (each, a “Renewal Term”), unless either party provides written notice to the other of its intention not to renew no less than thirty (30) days before such expiration in accordance with the Order Form. The Initial Term and all Renewal Terms are collectively referred to as the “Term.”
5.2 Suspension for Ongoing Harm. Brightpearl may on reasonable notice to Client suspend access to the Service if Brightpearl reasonably concludes that Client’s account is being used to engage in denial of service attacks, spamming, or illegal activity, the API Call Rate has been exceeded, and/or Client’s use of the Service is causing immediate, material and/or ongoing harm to Brightpearl or others. In the event that Brightpearl suspends access to the Service, Brightpearl will use commercially reasonable efforts to limit the suspension to (and only for the duration of) the offending portion of the Service and work with Client to resolve the issues causing the suspension of Service. Brightpearl reserves the right to charge Client for resolving such issues. Client agrees that Brightpearl shall not be liable to Client nor to any third party for any suspension of the Service under such circumstances. Any such suspension shall not excuse Client from Client’s obligation to make payments under this Agreement.
5.3. Termination for Cause/Expiration. Either party may immediately terminate this Agreement in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the complaining party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach.
5.4. Effect of Termination. Upon termination or expiration of this Agreement, Client shall have no rights to continue use of the Service. If this Agreement is terminated by Client for any reason other than a termination expressly permitted by this Agreement, then Brightpearl shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of Brightpearl’s breach of this Agreement, or by the Client under Section 2.9, then Client shall be entitled to a refund of (i) the pro rata portion of any fees paid by Client to Brightpearl for the base Service under this Agreement for the terminated portion of the Term and (ii) the proportion of the fees paid by Client for the Professional Services which were not completed at the date of termination. (Client shall not be entitled to a refund of any fees paid for the Professional Services that have been completed at the date of termination, such proportion to be determined by Brightpearl, acting reasonably). Brightpearl shall not be required to delete or expunge data or documents that Brightpearl is required to retain pursuant to applicable laws or for purposes of current or anticipated litigation, audit or government investigation.
6. Fee, Payment & Taxes
6.1. Service Fees. Client shall pay Brightpearl the fees set forth in the Order Form (the “Service Fees”) in accordance with this Section 6. The term of use for additional Users procured during an existing term will co-terminate with the end of the term for the applicable Service. Pricing for the first Renewal Term shall be at the rate set forth in the Order Form. If a price increase for subsequent Renewal Terms (which shall be notified to Client at least 45 days in advance of the relevant renewal) is unacceptable to Client, Client may provide notice of its intent not to renew this Agreement for the upcoming Renewal Term in accordance with Section 5.1
6.2. Professional Fees. Client shall pay Brightpearl the fees for Customization and training as set forth in the SOW (the “Professional Fees”) in accordance with this Section 7. Client shall reimburse Brightpearl for all reasonable, non-incidental out-of-pocket expenses that are pre-approved in writing by Client and directly incurred in connection with the Professional Service. Brightpearl agrees to maintain appropriate records and to submit copies of all receipts necessary to verify such expenses.
6.3. Read-Only Accounts. If Client no longer wishes to use the full range of Services but nevertheless requires ongoing access to the Client Data, or some other part of the Services, Client shall pay for the Brightpearl plan with the lowest available Service Allocation at the next relevant Renewal Term. For the avoidance of doubt the provisions of Section 2.3 continue to apply to any such Service Allocation.
6.4. Invoices; Payment. All invoices shall be sent by Brightpearl as set forth in the applicable Order Form (for the Service), or SOW (for the Professional Services). All fees payable are due within thirty (30) days from the invoice date unless specified otherwise in the applicable Order Form or SOW. Client acknowledges that it may receive multiple invoices depending on the nature of the services purchased from Brightpearl. All fees are non-refundable, except as otherwise explicitly stated in this Agreement.
6.5. Late Payment. Brightpearl reserves the right to suspend or terminate access to the Service upon seven (7) days’ written notice to Client in the event of late or non-payment of Brightpearl’s invoices. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
6.6. Taxes. Brightpearl fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes (“Taxes”). Client is responsible for paying all Taxes, excluding only taxes based on Brightpearl’s net income. If Brightpearl has the legal obligation to pay or collect Taxes for which Client is responsible under this Section 6.6, the appropriate amount shall be invoiced to and paid by Client unless Client provides Brightpearl with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. Proprietary Rights
7.1. Ownership of Client Data. As between Brightpearl and Client, all title and intellectual property rights in and to the Client Data is owned exclusively by Client. Client acknowledges and agrees that in connection with the provision of the Service, Brightpearl may store and maintain Client Data for a period of time consistent with Brightpearl’s standard business processes for the Service. Client grants Brightpearl a limited, revocable, non-exclusive, non-transferable (except in connection with an assignment of this Agreement), sublicensable license to access, store, and process the Client Data to the extent necessary to provide the Service and otherwise fulfill its rights and obligations under this Agreement. Notwithstanding the foregoing, nothing in this Agreement is intended to prevent Brightpearl from generating and using Brightpearl Data for purposes of providing, measuring, improving and marketing Brightpearl’s products and services; provided that Brightpearl shall not disclose to any third party any information that is identifiable as Client-specific information. Following expiration or termination of the Agreement or a Client account, if applicable, Brightpearl may deactivate the applicable Client account(s) and delete any data associated therewith.
7.2. Brightpearl Materials. All rights, title and interest in and to the Brightpearl Materials (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 Agreement, the rights granted to Client do not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Client 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 Client or any Users 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”). Client agrees not to use or display or use the Brightpearl Marks in any manner without Brightpearl’s express prior written permission.
7.3. Ownership of Work Product. All Work Product will be owned solely by Brightpearl. To the extent Brightpearl is not automatically deemed the author and/or owner of all Work Product, Client hereby grants and assigns to Brightpearl all right, title, and interest in the Work Product created by or on behalf of Brightpearl in connection with the Professional Services and this Agreement including, without limitation, any specifications concepts, ideas, methodologies, trade secrets and know-how developed by Brightpearl in performing the Professional Services hereunder. Client hereby grants to Brightpearl an unrestricted, worldwide, royalty-free, fully paid up, irrevocable, perpetual and nonexclusive license to use and otherwise exploit any Client owned or licensed specifications, information, feedback, suggestions or other information provided by Client to Brightpearl in connection with the Professional Services. Brightpearl grants Client a royalty free, fully paid-up, worldwide, non-exclusive, transferable license to use any Work Product developed by Brightpearl for Client for internal purposes during the Term, solely in accordance with this Agreement. No rights, neither express nor implied, are granted under this Agreement with respect to any patents, trademarks, trade secrets or copyrights, except as specifically provided for in this Agreement. Each party hereby agrees to execute all documents, take all rightful oaths, and do any and all acts which may be necessary, desirable, or convenient for securing and maintaining the rights granted or assigned in this Section.
8. Reservation of Rights.
8.1. Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to, the Service, Brightpearl Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Service, the Brightpearl Materials are and will remain with Brightpearl.
9. Users; Data Security; Processing; Transmission
9.1. Users. Client shall provide Brightpearl the names and e-mail addresses of Users authorized by Client to access the Service. Brightpearl will then send each authorized User an e-mail invitation with temporary Access Credentials in order to allow the User to set up an account. Client acknowledges and agrees that the accuracy of the e-mail addresses provided is the sole responsibility of Client, and that Brightpearl is not responsible to verify either the accuracy of the e-mail address or the actual identity of the e-mail recipient. Users are limited to the number of seats set forth in the Order Form (as may be increased during the Term in accordance with the Order Form). Access Credentials are for designated Users and cannot be shared, transferred or used by more than one User. Client will be responsible for the confidentiality and use of User Access Credentials. Client will also be responsible for all Client Data, including that which contains business information, account registration, account holder information, financial information, and all other data of any kind contained within e-mails or otherwise entered electronically through the Service or under Client’s account. Any Client Data received from a User associated with Client will be deemed to have been sent by Client. Client shall use all commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify Brightpearl of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s password or name and/or Service account numbers.
9.2. Security. Brightpearl shall maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Client Data. If Client is a non-European Union entity, all Client Data shall be processed in accordance with applicable U.S. local, state, and federal laws. Brightpearl will employ security measures in accordance with Brightpearl’s data security policy as amended from time to time, a current copy of which is available on Brightpearl’s website at https://www.brightpearl.com/security. Furthermore, Brightpearl’s shall provide basic support and maintenance services in accordance with the Brightpearl Service Level Agreement, which can be found at https://www.brightpearl.com/contact-support.
9.3. European Union. If Brightpearl Limited is identified as the contracting Brightpearl entity on the Order Form, any Personal Data of Client shall be Processed (as those terms are defined) according to the terms of the Data Processing Agreement (“Processing Agreement”), attached hereto as Schedule 3 which is hereby incorporated by reference, as executed by the parties, in compliance with the General Data Protection Regulation, Regulation (EU) 2016/679. In the event of a direct conflict between these Terms & Conditions and the Processing Agreement, the Processing Agreement will govern.
9.5. Transmission. Client understands that the technical processing and transmission of Client Data is fundamentally necessary to use of the Service. Client is responsible for securing DSL, cable or another high speed Internet connection and up-to-date “browser” software in order to utilize the Service. Client expressly consents to Brightpearl’s interception and storage of Client Data as needed to provide the Service, and Client acknowledges and understands that the Client Data will be subject to transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Brightpearl. Client further acknowledges and understands that Client 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 these Terms & Conditions in connection with confidentiality and security, Brightpearl is not responsible for any Client 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 Client’s local network. Client shall not call or otherwise invoke the API more than 120 times during any consecutive 60 second period (the “API Call Rate”), and Customer acknowledges that Brightpearl may implement technical measures as it deems necessary to prevent the API Call Rate being exceeded.
10.1. Definition. “Confidential Information” means any non-public commercial, financial, marketing, business, sales, customer, technical or other data, security measures and procedures, know-how or other information disclosed by or on behalf of the disclosing party to the receiving party in connection with this Agreement, that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary, including the features and functionality of the Service and the terms of this Agreement. For the avoidance of doubt, Client Data is the Confidential Information of Client and Brightpearl Materials is the Confidential Information of Brightpearl. Notwithstanding the foregoing, the following shall not be subject to the restrictions on Confidential Information (i) information that was publicly available at the time of its disclosure, or becomes publicly available through no fault of the receiving party, (ii) information that was rightfully in the receiving party’s possession without restriction prior to disclosure, (iii) information that was rightfully disclosed to the receiving party by a third party without restriction, (iv) information that was independently developed by employees and/or contractors of the receiving party who did not have access to, and without use of or reference to the disclosing party’s Confidential Information.
10.2. Obligations of the Parties. Each party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (at all times exercising at least a commercially reasonable degree of care in the protection of such confidential information) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by the disclosing party. The receiving party may disclose Confidential Information on a need to know basis to its contractors and service providers who shall be bound by confidentiality and non-use obligations at least as restrictive as those in this Section 10. Either party may disclose Confidential Information to the extent that such disclosure is required by law or order of a court or request or requirement of any other governmental authority. In addition, either party may disclose the terms of this Agreement to (i) its legal, business and financial advisors with a need to know solely for the purpose of providing services to such party; and (ii) prospective business parties in contemplation of a merger, acquisition or similar transaction, provided, however, that any such recipient shall first be bound by a written agreement requiring such recipient not to disclose the terms of this Agreement to any third party and to use such terms only for the purposes of evaluating the applicable transaction.
11.1. Warranty of Functionality. Brightpearl warrants that (i) the Service will perform substantially in accordance with the functionality described in the applicable Documentation, and (ii) such functionality will not be materially decreased during the then-current term. Client’s sole and exclusive remedy for Brightpearl’s breach of this warranty shall be that Brightpearl shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the applicable documentation and if Brightpearl is unable to restore such functionality, Client shall be entitled to terminate the Agreement and receive a pro-rata refund of the subscription fees paid under the Agreement for its use of the Service for the terminated portion of the then-current subscription term, in accordance with Section 5.4. Brightpearl shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to [email protected]. The warranties set forth in this Section 11.1 are made to and for the benefit of Client only. Such warranties shall only apply if the applicable Service has been utilized in accordance with the applicable documentation, this Agreement and applicable law.
11.2. Warranty of No Malicious Code. Client warrants that it will not introduce any viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”) into the Service.
11.3. Disclaimer of Warranties. For the avoidance of doubt, the foregoing warranties are applicable only to the Service as provided by Brightpearl and described in the Documentation. Any Customizations will be subject to the warranties provided in the SOW, if any. EXCEPT AS OTHERWISE STATED IN THIS SECTION 11, THE SERVICE IS PROVIDED TO CLIENT ON AN “AS IS” AND “AS AVAILABLE” BASIS. BRIGHTPEARL DOES NOT WARRANT OR REPRESENT THAT CLIENT’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CLIENT’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN THIS SECTION 11 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY BRIGHTPEARL. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. BRIGHTPEARL EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CLIENT’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CLIENT ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CLIENT’S PURPOSES.
12. Limitations of Liability
12.1. Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 12.2 BELOW.
12.2. Limitations on Liability. THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF: (i) THE TOTAL FEES PAYABLE BY THE CLIENT FOR THE SERVICE DURING THE FIRST TWELVE (12) MONTHS OF THIS AGREEMENT; AND (II) THE TOTAL FEES PAID FOR THE SERVICE GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OUT OF WHICH THE LIABILITY AROSE.
12.3. Exceptions. The limitations of liability set forth in Section 12.2 shall not apply to (i) either party’s indemnification obligations pursuant to Section 13 below, (ii) fees due under this Agreement, (iii) a breach of Section 10 of this Agreement; or (iv) any Client fraud, gross negligence, or willful / intentional misconduct. Notwithstanding anything to the contrary, neither party shall be liable to the other party to the extent such liability would not have occurred but for the other party’s failure to comply with the terms of this Agreement.
12.4. Acknowledgement. Both parties acknowledge that the fees reflect the allocation of risk set forth in this Agreement and that the parties would not enter into this Agreement without these limitations on their liability.
13.1. Infringement. Subject to the terms and conditions set forth in Section 12, Brightpearl shall, at its own expense, defend Client from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Service, as used in accordance with this Agreement, infringes such third party’s valid patents, copyrights or trademarks, or misappropriates such third party’s trade secrets, and shall indemnify Client from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such Claim(s). Brightpearl will have no liability for Claims or Losses to the extent arising from (i) use of the Service in violation of this Agreement or applicable law, (ii) use of the Service after Brightpearl notifies Client to discontinue use because of an infringement claim, (iii) modifications to the Service not made by Brightpearl, or made by Brightpearl based on Client specifications or requirements, (iv) use of the Service in combination with any non-Brightpearl software, application or service, or (v) services offered by Client or revenue earned by Client for such services. If a Claim of infringement as set forth above is brought or threatened, Brightpearl shall, at its sole option and expense, use commercially reasonable efforts either (i) to procure a license that will allow Client to continue using the Service without cost to Client; (ii) to modify or replace all or portions of the Service, as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (iii) if (i) and (ii) are not commercially feasible, terminate this Agreement and refund to the Client a prorated refund of the subscription fees paid under this Agreement for the terminated portion of the Term. The rights and remedies granted to Client under this Section 13.1 state Brightpearl’s entire liability, and Client’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.
13.2. Client’s Indemnity. Subject to the terms and conditions set forth in this Section 13, Client shall, at its own expense, defend Brightpearl from and against any and all Claims: (i) alleging that the Client Data or any trademarks or service marks, or any use thereof, infringes the copyright or trademark or misappropriates the trade secrets of a third party, or violates applicable law; or (ii) arising from Client’s gross negligence or willful misconduct, and shall indemnify Brightpearl from and against liability for any Losses to the extent based upon such Claims.
13.3. Indemnification Procedures and Survival. In the event a party becomes aware of a Claim for which the other party may have an indemnification obligation, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; provided, however, that the indemnifying party shall not enter into any settlement or compromise of any such Claim that imposes any liability or obligation on the indemnified party without the indemnified party’s prior written consent, which consent shall not be unreasonably withheld or delayed; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. A party’s indemnification obligations are expressly conditioned upon the indemnified party’s compliance with this Section 13.3, except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations, but such obligations shall be reduced to the extent of any damages attributable to such failure.
14. Governing Law and Dispute Resolution.
14.1. For the purposes of this Section 14: (i) Sections 14.2 – 14.4 apply (and Sections 14.5 – 14.6 do not apply) if the contracting Brightpearl entity as identified in the Order Form is Brightpearl Inc; and (ii) if the contracting Brightpearl entity as identified in the Order Form is not Brightpearl Inc, Sections 14.5 – 14.6 apply (and Sections 14.2 – 14.4 do not apply).
14.2. Arbitration. Notwithstanding any contrary provision of this Agreement, all disputes, claims, controversies and matters relating to or in connection with this Agreement (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.
14.3. 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 Agreement or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Service 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 Agreement in any court of competent jurisdiction wherever located. Client 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.
14.4. Prohibition of Class and Representative Actions and Non-Individualized Relief. CLIENT AGREES THAT CLIENT 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.
14.5. Dispute Resolution. In the event of any dispute or difference arising out of or in connection with this Agreement which the parties cannot resolve by amicable negotiation within 6 weeks of the onset of the dispute, the parties agree prior to any litigation first to try in good faith to settle the dispute or difference by mediation in accordance with the Mediation Rules published by the Centre for Dispute Resolution (“CEDR“). In the absence of agreement as to the appointment of the mediator, a mediator with sufficient regulatory and legal experience shall be nominated by CEDR.
14.6 Governing Law & Jurisdiction. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement 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.
15. General Provisions
15.1. Notice. Any legal notice required under this Agreement shall be provided to the other party in writing. If Client has a legal dispute with Brightpearl or if Client wishes to provide a notice under Section 13 (Indemnification) of this Agreement, or if Client becomes subject to insolvency or other similar legal proceedings, Client will promptly send written notice to [email protected] along with a copy by mail or express delivery service.
15.2. Integration. This Agreement, together with all referenced items, constitutes the entire understanding between Client and Brightpearl and are intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, e-mails, RFP’s and/or agreements between the parties. There are no other verbal agreements, representations, warranties undertakings or other agreements between the parties other than those incorporated into this Agreement. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Client in connection to this Agreement be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Brightpearl to object to such terms, provisions, or conditions. The Agreement shall not be modified, or amended, except as expressly set forth herein, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed Order Form.
15.3. Assignment and Subcontracting. Client may not assign this Agreement without the prior written consent of Brightpearl. This Agreement shall inure to benefit and bind the parties hereto, and their successors and assigns. Client agrees that that Brightpearl may subcontract aspects of the Service and shall not be responsible or liable for any breach by the applicable service provider that is beyond Brightpearl’s reasonable control.
15.4. Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
15.5. Relationship of the Parties. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although Brightpearl reserves the right to name Client as a user of the Service in a press release or similar public statement.
15.6. Non-Solicitation. During the Term and for one year thereafter, Client shall not, and shall not assist any other person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any person or persons) for employment or engagement as an independent contractor any employee or independent contractor then employed or engaged by Brightpearl or any and involved in any respect with the Service or the performance of this Agreement. In the event of a violation of this Section, Brightpearl will be entitled to liquidated damages equal to the compensation paid by Brightpearl to the applicable employee or contractor during the prior twenty four (24) months.
15.7. Severability. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
15.8. Waiver. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach.
15.9. Force Majeure. Neither party shall 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 shall be extended accordingly.
15.10. Headings. The Section headings used in this Agreement are included for reference purposes only and shall not affect the meaning or interpretation of this Agreement in any way.
15.11. Survival. Sections 3, 5.4, and 6-15 shall survive the termination or expiration of this Agreement.
15.12. Execution in Counterparts. This Agreement may be executed in counterparts and/or by facsimile or electronic signature and if so executed shall be equally binding as an original copy of this Agreement executed in ink by both parties.
LAST UPDATED 24TH MAY 2019
BRIGHTPEARL ENTERPRISE LICENSE AGREEMENT
STATEMENT OF WORK (SOW) – AS ATTACHED TO CLIENT ORDER FORM
BRIGHTPEARL ENTERPRISE LICENSE AGREEMENT
EU DATA PROCESSING SCHEDULE
1. The following definitions apply in this Schedule 3:
1.”Applicable Data Protection Law” shall mean: all applicable European privacy and data protection laws, including the EU General Data Protection Regulation (Regulation 2016/679), the Data Protection Act 2018 and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426);
2. “controller”, “processor”;, “data subject”, “personal data”, “processing” (“process”) and “special categories of personal data; shall have the meanings given to them in Applicable Data Protection Law; and
3. “Data” means all Client Data which is also personal data, and which Brightpearl is processing in connection with the provision of the Service, but only to the extent such processing is subject to the Applicable Data Protection Laws.
2. CLIENT’S RESPONSIBILITIES IN RELATION TO THE DATA
1. Client will share the Data with Brightpearl and hereby appoints Brightpearl to process the Data in connection with the provision of the Service (the “Permitted Purpose”).
2. Client warrants that:
1. Brightpearl’s use of the Data for the Permitted Purpose will comply with Applicable Data Protection Law;
2. it has obtained all necessary consents or satisfied another lawful ground for the relevant processing; and
3. it shall provide privacy notices to the relevant data subjects (as required by Applicable Data Protection Law),such that it can share the Data with Brightpearl for the Permitted Purpose, and that Brightpearl can process the Data as contemplated under this Agreement in accordance with Applicable Data Protection Law.
3. BRIGHTPEARL’S RESPONSIBILITIES IN RELATION TO THE DATA
1. Brightpearl shall:
1. process the Data only for the Permitted Purpose and in accordance with Client’s written and lawful instructions as issued from time to time, unless required otherwise by European Union or Member State law to which Brightpearl is subject. In such circumstances, Brightpearl shall notify the Client of that legal requirement prior to carrying out the relevant processing, unless that law prohibits such notification on important grounds of public interest;
2. notify the Client immediately if Brightpearl is aware that the Client’s instructions infringe Applicable Data Protection Law;
3. ensure that any person it authorises to process the Data is subject to a statutory or contractual obligation of confidentiality;
4. implement technical and organisational measures to protect the Data from accidental or unlawful destruction, and loss, alteration, unauthorised disclosure, or access (a “Security Incident”);
5. if it becomes aware of a confirmed Security Incident, inform the Client without undue delay and provide comprehensive information and cooperation to the Client so that the Client can fulfil any data breach reporting obligations it may have;
6. provide reasonable and timely assistance to the Client (at the Client’s cost) to enable the Client to:
7. comply with its responsibilities in connection with the Data under Applicable Data Protection Law, including but not limited to compliance with relevant security, breach notification, impact assessment and prior consultation obligations;
8. respond to any request from a Data Subject to exercise any of its rights under Applicable Data Protection Law. Brightpearl must not disclose the Data to any data subject other than at the Client’s request or instruction, as provided for in this Agreement or as required by law; and
9. respond to any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data. In the event that any such request, correspondence, enquiry or complaint is made directly to Brightpearl, Brightpearl shall promptly inform the Client of this, providing full details of the request.
1. Client consents to Brightpearl engaging third party sub-processors which provide data transfer, storage and hosting services in connection with the Permitted Purpose (including those which may transfer the Data outside of the EEA) provided that:
1. Brightpearl imposes data protection terms on any sub-processor it appoints that require it to protect the Data to the standard required by Applicable Data Protection Law; and
2. Where Client Data is Processed by a third party at Client’s request (such as via the API), Brightpearl shall have no liability for:
– that third party’s service and/or resources (including but not limited to its security and reliability); or
– any costs incurred by the Client (or by Brightpearl, which shall be passed on to and payable by the Client) as a result of using such third party Processor.
5. DELETION / RETURN OF DATA
Upon termination or expiry of this Agreement, Brightpearl shall (at Client’s election) destroy or return to the Client all Data in its possession or control.
1. DESCRIPTION OF PROCESSING
1. Brightpearl’s processing is being carried out to fulfil the Service, and shall continue for the duration of the Agreement
2. The Data consists of the following:
Contact info: Salutation, First Name, Last Name, Company, Email address, Telephone, Mobile/Cell, Fax,
Company Web Address, eBay username, Skype, Job title, Receive email newsletter.
Addresses: Default address, Delivery address, Invoice address.
Financial: Price list, Currency, Tax code, Nominal code, Account code, Accounts email address, Company number, Tax number, Credit limit, Discount, Credit terms, Bank name, Bank account code.
Timeline: Notes, Activities, Orders, Tickets, Emails, Calls, Accounts.
Files: (any uploaded files).
Colleagues: (all contacts in same company listed).
Custom fields: (any created custom fields).
Order info: Customer ref, Channel.
Products and prices: Item code, Details, Account code, Tax code, Quantity, List Price, Discount, Price, Total,
Addresses: Address, Delivery address, Invoice address.
Custom fields: (any created custom fields).
Files: (any uploaded files).
Notes and payments: Notes, Order updates, Payments.
3. The Data set out at 6.2 of this Schedule relates to the following categories of data subjects:
The Client’s employees, suppliers, customers and prospects.
1. Brightpearl will host the Data on behalf of the Client to enable the Client to use the Service.
LAST UPDATED 25th JULY 2019