BrightSun License Agreement
This License Agreement is entered into effective as of the date of product trial commencement, or cleared product payment, whichever is later, between BrightSun Technologies Ltd, a company incorporated in England and Wales with its principal office at 25 Brooking House, Rollason Way, Brentwood, Essex, CM14 4ET (the “Licensor”) and the paying/trialing company, as authorised by the individual completing account creation (the “Licensee”).
The parties agree as follows:
Terms of Agreement
Article I: Definitions
“BrightSun Platform” means the current combination of the Licensor’s Database (as defined herein) and the Functionality (as defined herein) being licensed hereto, as generally described below. “Licensor’s Database” shall mean the current compilation of data, those portions of which the Licensor owns, from time to time, and those portions that may be owned by third parties, and as to which Licensor shall, from time to time, have the right to provide to Licensee, which has been embedded in the current BrightSun Platform. “Functionality” shall mean the technology features and functionalities developed by Licensor and described on Schedule 2, and provided to Licensee in accordance with the terms hereof and in accordance with the terms of Schedule 2 and any addendum or supplements thereto, as mutually agreed to by the parties.
“Intellectual Property Rights” means all copyrights, trademark rights, trade secrets, know-how and patents.
“Licensee’s Data” means compilation or collection of proprietary data owned or collected by Licensee which is inputted into the BrightSun Platform.
Article II: Grant and Restrictions on Use
2.0 Terms of Grant. Subject to the terms and conditions of this Agreement, including but not limited to the limitation of grant as set forth in section 2.1, the Licensor grants to the Licensee, under the Licensor’s Intellectual Property Rights, the limited, non-exclusive, non-transferable right in the entire world where Licensor has the right to grant the rights in this License Agreement to access and utilize the BrightSun Platform, and to the extent permitted herein, use, copy and provide the information derived from the BrightSun Platform (the “BrightSun Information”). In addition the Licensee is granted similar rights to copy any Licensee documentation related to the effective maintenance and use of the BrightSun Platform. The license expressly does not include any categories of data or functionality which are not currently included in the BrightSun Platform, but which Licensor may offer in the future to include in the BrightSun Platform.
2.1 Limitation of Grant. Licensee may not, nor allow its employees to redistribute, sublicense, disseminate, publish, display, prepare derivative works based on, change, modify, alter or distribute in any form to any third party any of the BrightSun Information or documentation, in any manner without the prior written consent of Licensor, except pursuant to Section 2.2 or for internal purposes in accordance with the terms and conditions of this Agreement. Licensee receives no ownership rights hereunder.
2.2 Permitted Dissemination of Information and Attribution. Licensee may provide BrightSun Information and documentation, or copies thereof, to its clients as part of normal course of business. Upon any permitted dissemination of BrightSun Information, Licensee shall provide attribution mentioning BrightSun as a source of the information.
2.3 Restricted Access. The Licensee (1) shall not provide access to the BrightSun Platform to any person who is not an employee of, or contractor for The Licensee (an “Authorised User”); and (2) may not offer or deliver (and shall not permit any third party to offer or deliver) the BrightSun Platform or any BrightSun Information to persons or entities which are in the business of providing (i) data or access to databases to financial services companies, (ii) customer relationship management software or (iii) other tools, databases or services which could reasonably be considered competitive with the BrightSun Platform.
2.4 Training; Client Support; and Other Services. Licensor shall provide the training, client support, and other services, if any, as set forth on Schedules 1 and 2 and any addendums or supplements thereto, as mutually agreed to by the parties.
Article III: Fees
3.1 License Fees* In consideration of the license and rights granted to the Licensee, the Licensee shall pay to the Licensor such fees as provided in and in accordance with Schedule 1 and any addendums or supplements thereto, as mutually agreed to by the parties.
3.2 Development Fees As set forth in Schedule 2, additional fees may apply to specific feature requests.
Article IV: Term and Termination
4.0 Term. This Agreement shall be effective beginning on the Effective Date and shall end either at the end of an agreed trial period, or on the first anniversary of the Effective Date (the “Term”). This Agreement shall automatically be renewed for additional one year term (each a “Renewal Term”), unless either party gives Thirty (30) days written notice to the other prior to the expiration of the Term, or the agreement is cancelled within a trial period. Licensor may change its pricing as set forth in Schedule 1 for any Renewal Term by giving written notice of such revised pricing or other terms at any time prior to Forty five (45) days prior to the Effective Date of the Renewal Term.
4.1 Early Termination This Agreement may be terminated immediately upon notice by either the Licensor or the Licensee under any of the following conditions:
(i) the commencement of any involuntary case in respect of the other party or any substantial part of its properties under bankruptcy laws, or the commencement by the other party of a voluntary case under any Bankruptcy Law, or the consent by it to the appointment for taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the other party, or for any substantial part of any of its properties;
(ii) breach of any of the provisions or terms of this Agreement, if such breach is not curable, or if curable, is not cured within 15 days after written notice of such breach is given;
(iii) either party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement.
4.2 Licensee Termination. The Licensee may terminate this agreement immediately by written notice to The Licensor if there is any change of control of the Licensor.
4.3 Termination; Survival. Upon termination, Licensee shall have no further right to use the BrightSun Platform and all of Licensee’s rights and licenses granted hereunder shall immediately cease and any outstanding fees shall be paid or repaid on a pro rata basis. Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
Data Portability If The Licensee wishes to have the Licensee’s data converted into in any other format or imported into another database upon termination, the parties shall mutually agree on the terms and cost of such conversion or importation.
Destroying Information On termination of this agreement, either party should destroy, as soon as reasonable practical, any information or data provided by the other party which contains confidential information related to that other party. Where information must be retained for regulatory purposes the retaining party should notify the other of the relevant details in writing.
Article V: Security
5.0 Access to BrightSun Platform by Licensee’s
Employees. Licensee shall ensure that the BrightSun Platform is used only by its Authorised Users pursuant to the terms and conditions of this Agreement using the unique password assigned to that user. Licensee shall provide Licensor with the name, email address, and title of each Authorised User and shall notify Licensor whenever a person ceases to be an Authorised User. Licensor reserves the right to deny or withdraw a password to any Authorised User in its sole business judgement.
5.1 Password Protection
(a) The Licensee shall procure that its users of the BrightSun Platform will take reasonable measures to protect their BrightSun Platform passwords (“Passwords”) and in particular (but without limitation) that they:
(i) do not reveal their Passwords to any other individual;
(ii) do not write their Passwords down or store them on any electronic or other medium; and
(iii) do not use their Passwords except for key-entering them into the BrightSun Platform.
(b) The Licensor will not be liable to the Licensee in any way for any breach of confidentiality or any other loss suffered by the Licensee that results from a violation of the provisions of clause 4.6(a).
(c) The Licensor will take reasonable measures to protect the confidentiality of the Passwords.
5.2 Reasonable Security Measures. The Licensee shall be responsible for any breaches by its Authorised Users or other persons who gain unauthorised access to the BrightSun Platform through the Licensee and Licensee shall assist Licensor to enjoin and otherwise redress such conduct.
Article VI: Ownership
6.1 Property Rights This agreement does not transfer ownership of, or create any licences (implied or otherwise), in any Intellectual Property Rights in Software or the Documentation.
6.2 Insolvency In the event of Licensor insolvency, and where no other party has taken ownership of the source code, the BrightSun Platform Source code shall be delivered to the Licensee on the understanding they may continue the service themselves.
Article VII: Updating the Data & Platform
7.0 Updating the Data. Within the constraints of commercial reasonableness, the Licensor shall control the quality of, support, update, supplement and expand the BrightSun Platform to keep such data and application current and accurate. Licensor may, from time to time, in the ordinary course of Licensor’s business, add, delete and modify data in the BrightSun Platform.
7.1 Feature Development In accordance with Schedule 2, The Licensee acknowledges that the BrightSun Platform is provided as-is, thought there is an expectation of continued development, and the opportunity to request specific feature developments.
7.2 Service Disruption The Licensor does not warrant that use of the BrightSun Platform will be uninterrupted. However, it will maintain the BrightSun Platform in a commercially reasonable manner.
7.3 Limitation of Liability Licensor does not warrant that the BrightSun Platform or information is free of errors, and Licensor does not warrant in any way any information provided by any third party. Licensee acknowledges and agrees that Licensor and its independent data providers cannot and do not guarantee the content or accuracy of such information, electronic documents, data, or data files transmitted, processed, disseminated, or distributed hereunder, or the timeliness or availability of such information. Accordingly, except for Licensor’s willful misconduct or gross negligence, Licensee agrees that Licensor and its independent data providers shall not have any liability or obligation to Licensee, Licensee’s clients, or any third party (whether caused directly or indirectly), relating to or arising out of the BrightSun Platform, BrightSun Information, third party information or any portion thereof, including (i) the transmission, delivery or distribution of such information; or (ii) the accuracy, validity or completeness of such information, including errors or omissions of such information or any BrightSun functionality. Licensor’s sole liability to Licensee or any third party for any claims, notwithstanding the form of such claims (e.g., tort, contract, negligence or otherwise) relating to (i) and (ii) above shall be to use reasonable efforts to resume the delivery of the BrightSun Information and continue its quality control work.
Article VIII: Licensor’s Warranties
8.0 The Licensor represents, warrants and covenants that the BrightSun Information (excluding information provided by any third party) has been compiled from sources that it considers reliable and Licensor will run commercially reasonable control checks on the data therein.
8.1 Licensee’s Data. Licensor shall implement organisational measures to protect any personal Licensee data against unauthorised or unlawful processing and accidental loss or damage. Access to such personal data is limited to employees or subcontractors authorised by the Licensor, who need access to the data under the terms of this agreement and have been informed of its confidential nature.
*8.2 Intellectual Property Rights * If use of the software is deemed, by qualified legal council, likely to be come the subject of a property rights claim, the Licensor will endeavour to modify to modify the service to avoid such a claim and be as functionally equivalent as practical.
8.3 Professionalism The Licensor will perform all support services in a professional manner, in compliance will all applicable law and regulation.
Article IX: Licensee’s Warranties and Acknowledgement.
The Licensee represents, warrants and covenants that (a) its use of any portion of the BrightSun Platform accessed pursuant to this Agreement shall be restricted pursuant to the terms and conditions hereof, (b) Licensee shall use its best efforts to ensure that the BrightSun Information shall not be made available to any person or entity who may resell such information or modify such information; (c) use of the BrightSun Platform by Licensee shall in all cases comply in all material respects with all federal, state and local laws, statutes, rules, regulations and ordinances; and (d) Licensee shall not attempt to replicate the BrightSun Platform or assemble, create, or maintain a database from or using the BrightSun Information, except as provisioned in Article IV.
Article X: Confidentiality
Each party understands that it may during the Term or any Renewal Term have access to certain non-public, confidential or proprietary information (“Proprietary Information”) of or relating to the other party, all information relating to the business, operations and financial condition of a party, including, in the case of the Licensor’s Proprietary Information, the terms of this License Agreement; the software, systems, databases, hardware and information services used by a party to conduct its business, including the configurations thereof; all information relating to the customers or prospects of a party; and any other information which is marked as confidential or which reasonably ought to be understood to be confidential. Each party shall (i) refrain from using such Proprietary Information for any purpose other than the performance of its obligations hereunder, (ii) keep such Proprietary Information confidential and restrict disclosure thereof to those of its employees with a need to know such Proprietary Information, and (iii) advise all employees and agents with access to such Proprietary Information of the obligation to protect such Proprietary Information in accordance with the terms hereof.
The obligations of confidentiality in this clause 5 do not apply to information which: (a) is at the time of the disclosure, or subsequently through no breach of this Agreement by either Party becomes, generally available to the public; (b) becomes rightfully known through a third party otherwise than as a result of a breach of any obligation of confidentiality (so far as the Party is aware, having made reasonable enquiry of such third party); (c) is lawfully in the possession of the either Party prior to such disclosure; or (d) is independently developed by either Party.
The obligations contained in this clause shall survive termination of this Agreement for a period of 24 months.
Article XI: Indemnification
Subject to the limitations in this Agreement, each of the parties (in this context, an “Indemnifying Party”) to this Agreement agrees to indemnify and hold harmless the other party to this Agreement (in this context, an “Indemnified Party”) against all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties and reasonable outside attorneys’ and experts’ fees and expenses and costs of settlement (but excluding any indirect, special or consequential damages (including in the term “damages,” lost profits and loss of goodwill)), suffered, incurred or sustained by the Indemnified Party which arise out of (i) any breach of the covenants and agreements, or any material inaccuracy in the representations and warranties, made by the Indemnifying Party in this Agreement, or (ii) any claim of any third party or any client of the Licensee or any third party arising out of any such breach or material inaccuracy by the Indemnifying Party.
Article XII: Limitation of liability
Neither party excludes or limits liability to the other party for:
fraud or fraudulent misrepresentation;
death or personal injury caused by negligence;
any matter for which it would be unlawful for the parties to exclude liability.
Article XIII: Miscellaneous
12.1 Uncontrollable Events. Neither the Licensor nor the Licensee shall be responsible for any cessation or delay in the performance of its obligations under this Agreement due to causes beyond its reasonable control. However, each party shall use its reasonable efforts to mitigate any such uncontrollable event affecting such party.
12.2 Publicity. Licensee authorizes Licensor to use its name(s), trademarks(s), or trade name(s) (whether registered or not) in publicity releases concerning Licensee and Licensor’s business relationship. Licensor may include Licensee’s name in its client roster for marketing purposes.
12.3 Entire Agreement This agreement and associated Schedules constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Schedule 1 - Schedule of Fees
A. License Fees
Cost Per Month
Is as agreed during payment authorisation.
B. Other Terms
Except while within trial period, Licensor shall invoice Licensee on a monthly basis, in advance.
Licensee shall make payment of all appropriate and properly submitted invoices within 15 days of receipt of the invoice.
Fees and all other payments are net of tax. Licensee shall, in addition, pay to Licensor the amount of any tax, duty or assessment, including any applicable VAT which Licensor is obliged to pay and/or collect from Licensee in respect of any supply under the agreement (other than tax on Licensor’s income.
Schedule 2 - The Bright*Sun Platform Service
The Licensee shall have access to The Licensor’s Functionality (The BrightSun Platform) which contains (at the time of this agreement):
A web interface that allows the Licensee to view comapny profiles, define a list of tracked companies, and view recommended companies:
Email Alerts highlighting recent news and changes in relevant metrics for tracked companies;
Support & Training
Licensee shall provide all necessary instructions, user accounts and passwords as are necessary for the Licensed Users identified by the Licensor.
Licensor shall ensure that support is available by e-mail (and phone if within subscription terms) during Normal Working Hours to provide assistance to The Licensee in respect of the following:
(a) remedying Defects in the Service and the Software; and
(b) providing advice on the use of the Service and the Software.
Licensor shall provide documentation to the Licensee containing sufficient up-to-date information for the proper use and maintenance of the BrightSun Platform.
Development Updates and Bug Fixes
The Licensor may request specific developments at any time during the term of this agreement.
Where appropriate, and subject to the approval of The Licensor, any requested developments will be included within the general product roadmap. The Licensee will noramlly be informed of the priority of any development request within 7 days of the request being made.
The Licensor may request, in writing, an additional fee for the development of functionality that is important to the Licensee and too large, or Licensee-specific to include in the overall development roadmap, or a development that must be completed by a specific date that would not be met in the course of the general roadmap priority.