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Terms Of Service

The following "User License Agreement" governs your use of the software and services provided by Brilliant Harvest Inc. ("Brilliant"). This is a legal agreement and contract between you and Brilliant. By registering your use of the Service (as defined below), you, as Subscriber, are agreeing to be legally bound by the terms and conditions of this User License Agreement ("Agreement").

THIS AGREEMENT LIMITS BRILLIANT'S LIABILITY AND YOUR LEGAL RIGHTS AND IMPOSES LEGAL OBLIGATIONS ON YOU. PLEASE READ IT CAREFULLY AND BE SURE YOU UNDERSTAND IT BEFORE ACCEPTING. BY ACCEPTING THIS AGREEMENT, YOU WARRANT AND REPRESENT THAT YOU HAVE READ IT AND FULLY UNDERSTAND AND ACCEPT ALL ITS TERMS, CONDITIONS, DISCLAIMERS, LIMITATIONS, AND INDEMNITIES.

THIS AGREEMENT APPLIES TO ALL USERS OF BRILLIANT'S SOFTWARE AND SERVICES AND ALL PARTIES WHO ACCEPT THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY OF THE FOLLOWING AS DEFINED IN THIS AGREEMENT: A SUBSCRIBER, ADMINISTRATOR, AUTHORIZED USER, OR REGISTERED CUSTOMER. Capitalized terms have the meanings stated in Section 14 below.

1. Limited License to Use the Service

  • Conditional upon compliance with this Agreement by Subscriber and its Administrators, Authorized Users and Registered Customers, and payment of all amounts due to Brilliant as provided in this Agreement or otherwise between the Parties, including under any SOW, Subscriber is granted a non-exclusive, non-transferable, limited, and revocable license, with a right to sublicense as permitted by Brilliant, to access and use the Service. The Service is licensed, not sold.
  • Subscriber agrees to comply in all respects with all the terms and conditions of this Agreement, including any SOW made under this Agreement.
  • Subscriber will not permit any Person to access or use the Service without such Person being an Administrator or Authorized User, or, with respect to customer-facing features of the Service, a Registered Customer.
  • Subscriber will cause its Administrators, Authorized Users, and Registered Customers to comply in all respects with all the terms and conditions of this Agreement and will not permit any Administrator, Authorized User, or Registered Customer, or any other Person to access the Service other than as permitted by this Agreement.
  • Except for the non-exclusive license granted pursuant to this Agreement, Subscriber acknowledges and agrees that all ownership, license, intellectual property rights, and all other rights, titles, and interests in and to the Service shall be and remain exclusively with Brilliant.
  • Brilliant reserves its rights at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice, except that Brilliant shall provide Subscriber with thirty days' notice of any modification that materially reduces the functionality of the Service. Continued use of the Service following any modification constitutes Subscriber’s acceptance of the modification.
  • Brilliant reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to maintenance, repairs, bug fixes, or installation of modifications, upgrades, or new functionality. Brilliant will make commercially reasonable efforts to carry out such operations outside of regular business hours to minimize disruption to Subscriber. However, Brilliant reserves the right and ability to temporarily suspend operations without notice at any time to complete necessary repairs or deal with a Security Emergency. Where possible, Brilliant will provide notice of such operations in advance by way of notification within the Service, email, or other notification method deemed appropriate by Brilliant. Notification within the Service will be visible to all Administrators, Authorized Users, and Registered Customers to the extent the foregoing have access to the Service. In the event that Brilliant has a need to contact any Registered Customer directly, Brilliant will notify Subscriber of such need concurrently with contact.
  • Subscriber will in all cases pay Brilliant any costs paid or payable by Brilliant to third parties incurred in connecting Subscriber business systems, including without limitation Subscriber's networks, services, and operating systems ("Subscriber Systems") with those of Brilliant. If required, any costs payable to Brilliant for connecting Subscriber Systems with those of Brilliant will be as set out in an SOW to this Agreement.
  • Brilliant may provide Test Versions of the Service to Subscriber at our sole discretion. "Test Versions" of the Service are new versions that have been developed but have not yet been fully tested or released to all Brilliant's subscribers or users. Brilliant will notify Subscriber of delivery of any Test Version and ask that Subscriber provide feedback and reports of bugs or issues noted by Subscriber. All Test Versions are subject to the terms and conditions of this Agreement, but are strictly "as is", "where is", and "as available" without warranty, condition, or guarantee of any kind. Test Versions may not be covered by customer support and may be changed or discontinued at any time without notice. Brilliant reserves the right to not release a Test Version into the Service or to make it generally available.

2. Payment, Refunds, and Subscription Changes

  • Subscriber will provide Brilliant with a valid credit card for payment of the applicable Subscription Fees. All Subscription Fees are exclusive of all applicable federal, state, provincial, municipal, or other taxes which Subscriber agrees to pay based on where Subscriber is located. Subscriber will pay (i) all applicable Subscription Fees and (ii) all applicable sales or other taxes, as amended from time to time, for the jurisdiction in which Subscriber is located. In the event of updated tax rates, Brilliant may apply the new tax rate without notice to Subscriber. In addition to any Subscription Fees and taxes, Subscriber may still incur charges incidental to using the Service, including, by way of example only, charges for Internet access, data roaming, and other data transmission charges. If Brilliant has the legal obligation to pay or collect taxes for which Subscriber is responsible under this Agreement, the appropriate amount shall be charged to and paid by Subscriber, unless Subscriber provides Brilliant with a valid tax exemption certificate authorized by the appropriate taxing authority.
  • Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If Subscriber is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Brilliant receives an amount equal to the sum it would have received had no such deduction or withholding been made.
  • Subscribers with monthly paying subscriptions will be charged for Subscription Fees in advance each month. Annual Subscribers will be charged for Subscription Fees annually in advance on the anniversary date of the initial subscription charge. All charges and Subscription Fees are final and non-refundable, including payments made by Annual Subscribers, setup fees, and other professional services charges.
  • No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of a Subscriber, Administrator, or Authorized User. There will be no additional charges for cancelling a subscription and paying subscriptions cancelled prior to the end of their current billing cycle for Subscription Fees will not be charged again in the following cycle.
  • Amounts charged on the next billing cycle will be automatically updated to reflect any changes to Subscriber's subscription account and applicable Subscription Fees, including upgrades or downgrades. Adding Authorized User subscriptions or subscription upgrades will trigger prorated charges in the current billing cycle. Subscriber authorizes Brilliant to apply updated charge amounts to Subscriber's account and credit card. Subscription changes, including downgrades, may result in loss of access to Content, features available in the Service, or an increase or reduction in the amount of available capacity for Content provided by the Service.
  • All prices are subject to change upon notice of no less than thirty days. Such notice may be provided by an e-mail message to any one of Subscriber's Administrator, or in the form of an announcement on the Service.
  • Any amounts not paid by Subscriber when due to Brilliant, whether with respect to Subscription Fees, Service Fees, or otherwise, shall be subject to interest charges, from the date due until paid, at the rate of eighteen per cent (18%) per annum, or the highest interest rate allowable by law (whichever is less), compounded and payable monthly.
  • If Brilliant incurs any costs, expenses, or fees, including legal fees and professional collection services fees, in connection with the collection or payment of any amounts due it under this Agreement, Subscriber agrees to reimburse Brilliant for all such costs, expenses and fees, including Brilliant's legal costs and disbursements incurred in so doing, on a solicitor and own client basis, both before and after judgment.

3. Acceptable Use of the Service

  • Logging in to the Service may require users to accept the terms of a click-through agreement related to acceptable use of the Service, and Brilliant may amend such click-through agreement at any time. However, without limitation, Subscriber agrees to the following:
    • Subscriber will not reproduce, duplicate, copy, sell, resell, license, sub-license, or exploit access to the Service, use of the Service, or any portion of the Service, except as expressly permitted in this Agreement or in an SOW, or otherwise with the express written permission of Brilliant;
    • Subscriber will not modify, reverse engineer, decompile, disassemble, translate, adapt, or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, or with Brilliant, or any other software or service provided by Brilliant;
    • Subscriber will not use the Service in any manner which may infringe copyright or intellectual property rights, or rights of privacy or personality of any Person or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, racist, discriminatory, or in violation of the terms of this Agreement.;
    • Subscriber will not knowingly use the Service to upload, post, host, or transmit unsolicited bulk email or “Spam”, short message service “SMS” messages, commercial electronic messages, viruses, worms, malware, self-replicating computer programs or any computer code of a destructive or malicious nature; and
    • All access to and use of the Service via mechanical, programmatic, robotic, scripted, or any other automated means not provided as part of the Service is strictly prohibited.

4. Access to the Service

  • No Person is authorized or permitted to access and use the Service unless such Person is an Authorized User, and such an Authorized User includes an Administrator, or a Registered Customer. All Authorized Users are required to provide their full legal name, a valid email address, a valid mobile phone number and any other information reasonably requested by the Service or by Brilliant.
  • Each Authorized User will be provided with a unique identifier ("Credentials") to access and use the Service. Credentials shall only be used by the Authorized User to which such Credentials are assigned, and shall not be shared with, or used by any other Person, including other Authorized Users.
  • Any Authorized User designated by Subscriber as an Administrator shall have the rights of an Administrator of Subscriber's account, including the ability to designate multiple Authorized Users as Authorized Users, or as Registered Customers or additional Administrators. Any Person designated by Subscriber as an Administrator, Authorized User, or Registered Customer, or permitted by Subscriber to act as any of the foregoing, shall be deemed to be acting on the authority of Subscriber, with the knowledge, approval, and permission of Subscriber, and Subscriber shall be fully liable to Brilliant for the conduct of all such Persons.
  • Brilliant agrees to provide a secure method of authentication and accessing its Service. As part of the Service, Brilliant will provide mechanisms that: (i) allow for user password management; (ii) transmit passwords in a secure format; and (iii) protect passwords entered for purposes of gaining access to the Service by utilizing code that follows password management best practices.
  • Subscriber shall be responsible for protecting the security of Credentials, or any other codes associated with the Service, and for the accuracy and adequacy of information, including personal information, provided to the Service. Subscriber will implement policies and procedures to prevent unauthorized use of Credentials and will promptly notify Brilliant upon suspicion or learning that Credentials have been lost, stolen, compromised, or misused.
  • Brilliant shall notify Subscriber, with all relevant details (except those which could prejudice the security of data uploaded by other customers of Brilliant), of any event that Brilliant reasonably believes represents unauthorized access to, disclosure of, use of, or damage to Subscriber's Content (a “Security Breach”). Such report shall be made within 72 hours after Brilliant learns of the Security Breach.
  • In the event of a Security Breach, Brilliant shall (i) cooperate with Subscriber to identify the cause of the breach and to identify any affected Content; (ii) assist and cooperate with Subscriber in investigating and preventing any recurrence of the Security Breach; (iii) assist and cooperate with Subscriber in any litigation or investigation against third parties that Subscriber undertakes to protect the security and integrity of Subscriber's Content; and (iv) use commercially reasonable efforts to mitigate any harmful effect of the Security Breach with respect to Subscriber.
  • Where the Service is made available via an app operating on a mobile device, such device must be capable of running the app, and Subscriber will ensure that the device is of acceptable functionality to do so. Subscriber will not distribute or make any app running the Service available over a network where it could be used by multiple devices at the same time. Subscriber will not rent, lease, lend, sell, redistribute, or sublicense the App. Subscriber will not copy, decompile, reverse-engineer, disassemble, or attempt to derive the source code of, or modify, or create derivative works of the App, or any updates or any part thereof (except as and only to the extent the foregoing restrictions are prohibited by applicable law).

5. Proprietary Rights

  • The Service, including all rights, titles, and interests in or to the Service, remains the property of Brilliant.
  • Brilliant does not own the Content, and all rights, titles, and interests in and to all Content uploaded or posted to the Service remains the property of Subscriber or, if applicable, any third-party owners, suppliers, or licensors of all or any portion of such Content, or the party uploading the Content into the Service.
  • Brilliant will have such rights as are reasonably required to permit Brilliant to copy and use the Content to allow Brilliant to perform its obligations under this Agreement, including but not limited to providing and making available the Service and any Custom Services.
  • In consideration of continued improvements to the Service, Subscriber will grant, and hereby grants to Brilliant a fully paid, royalty-free, worldwide, perpetual, irrevocable, and transferable right and license, including rights to sublicense, to use, modify, translate, distribute, publish, display, disclose, and incorporate into the Service and exploit for commercial gain any feedback, corrections, proposals, suggestions, or requests for improvements, modifications or enhancements to the Service or other such information made or provided by Subscriber, without attribution or payment of consideration.
  • Brilliant will have the worldwide, fully paid, royalty free, irrevocable, and exclusive right to create Derived Data (as defined and described under the heading "Definitions" below), and to use, modify, translate, distribute, publish, display, disclose, and incorporate into the Service and exploit for commercial gain all such Derived Data, including but not limited to using Derived Data for the purposes of training artificial intelligence platforms, programs and services (including without limitation large language models, machine learning, or any technologies or other matters similar to or derived from the foregoing, or hereinafter discovered or invented), provided that Derived Data does not contain or disclose in any identifiable, recoverable, or usable manner the Confidential Information of Subscriber or the personal information of identifiable individuals without their consent. For greater certainty, Brilliant has no right to use identifying or identifiable data or information for such purposes without consent.
  • All Derived Data, and all rights, titles, and interests therein, including all copyrights and intellectual property rights of any kind, will be exclusively owned by Brilliant, and all revenue and profits resulting from any generation, use, exploitation, or publication Derived Data shall accrue to the exclusive benefit of Brilliant, with no obligation on the part of Brilliant to account to or report to Subscriber.
  • As part of providing the Service and performing its obligations under this Agreement, Brilliant may be required to access third-party systems and applications which Subscriber has licensed (“Third-Party Systems”). Subscriber grants to Brilliant all necessary permission and licenses to exercise such access and confirms that Subscriber has the right to grant Brilliant access to such Third‐Party Systems, including the data included in those Third‐Party Systems, solely for the purposes of providing the Service to Subscriber. If the owner, provider, supplier, or licensor of a Third‐Party System brings a claim against Brilliant related to such access and use, Subscriber agrees to resolve such claim, obtain access for Brilliant, and indemnify and hold Brilliant harmless.

6. Cancellation, Suspension, and Termination

  • Subscriber or Subscriber's Administrators are solely responsible for canceling subscriptions. An Administrator may cancel a subscription at any time by accessing the Service as applicable. For security reasons, cancellations shall only be performed by an Administrator using the account cancellation function within the Service. The Administrator may be directed, within the Service, to call support to complete the cancellation. Cancellations shall not be accepted by any other means.
  • Brilliant in its sole discretion has the right to suspend or discontinue providing the Service to any Subscriber, including any Administrator, Authorized User, or Registered Customer without notice for actions that (a) are in material violation of this Agreement, including failure to pay amounts due as and when due, or (b) create a Security Emergency.
  • If Authorized Users or Registered Customers use the Service to materially violate this Agreement in a way that does not create a Security Emergency, other than non-payment, and Brilliant provides Subscriber with commercially reasonable notice of such violation, then if, despite the foregoing, the violation is not resolved to Brilliant's reasonable satisfaction within ten days of such notice, Brilliant shall have the right to suspend access to the Service.
  • Upon cancellation or termination of this Agreement, Brilliant shall only be responsible for the return of Content directly to an Administrator on behalf of Subscriber, or a designated Authorized User if the Administrator is unable to be reached. Content may be returned by access to a link permitting download of Content. Brilliant's managed backup services are designed to facilitate restoration of Content to the server or device from which the Content originated in the event the primary data is lost or corrupted. Brilliant will allow recovery of lost or corrupted Content at no cost to Subscriber. Following any cancellation or termination of the Service or this Agreement for any reason, Subscriber shall have ninety (90) days to retrieve any and all Content.

7. Agreement to Communicate and Contract Electronically.

  • The Parties agree to communicate, transact, and contract by electronic means. Brilliant may correspond or convey information or documentation to Subscriber via email, text message, or other similar means, unless Subscriber expressly requests otherwise and Brilliant agrees to such request. Notwithstanding the foregoing, Brilliant shall not be liable for any loss, damage, expense, delay, loss of data, harm, or inconvenience resulting from the loss, delay, interception, corruption, or alteration of any email, text message, or other communication, including transmission of Content, due to any reason beyond the reasonable control of Brilliant.

8. Confidential Information.

  • Receiving Party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.
  • Unless otherwise provided in this Agreement or other written instrument between the Parties, all Confidential Information shall remain the property of Disclosing Party.
  • If Receiving Party is confronted with legal action to disclose Confidential Information received under this Agreement, Receiving Party shall, unless prohibited by applicable law, provide prompt written notice to Disclosing Party to allow Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate, and Receiving Party shall reasonably assist Disclosing Party in such efforts. If disclosure is nonetheless required, Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised in writing by its legal counsel must be disclosed, or which it is compelled by law to disclose.
  • In the event Receiving Party discovers that any Confidential Information has been used, disseminated, or accessed in violation of this Agreement, it will immediately notify Disclosing Party, take all commercially reasonable actions available to minimize the impact of the use, dissemination, or publication, and take all necessary steps to prevent any further breach of this Agreement.
  • The Parties agree and acknowledge that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to Disclosing Party for which there may be no adequate remedy at law. In such event Disclosing Party shall be entitled to seek an injunction, without the necessity of posting a bond or undertaking as to damages, to prevent any further breach of this Agreement, in addition to all other remedies available in law or equity.
  • Receiving Party shall promptly return or, at Disclosing Party's option, certify destruction of all copies of Confidential Information at any time upon request or within thirty (30) days following the expiration or earlier termination of this Agreement.
  • Notwithstanding any expiration or termination of this Agreement, Receiving Party's obligations to protect the Confidential Information pursuant to this Agreement will survive and continue indefinitely after the expiration or earlier termination of this Agreement until the Confidential Information becomes generally available to the public other than through any act or omission of Receiving Party.
  • In no event shall Brilliant's use or disclosure of information regarding or relating to the development, improvement, or use of any of the Service, Custom Services, Aggregate Data, Training Data, or Brilliant's large language models, machine learning, or artificial intelligence platforms, programs, or services, expertise, or know-how be subject to any limitation or restriction upon Brilliant, or any assignment or grant of right, title, or interest to Subscriber except as expressly stated in this Agreement or any applicable SOW.

9. Custom Services

  • In addition to delivery of the Service, Brilliant may agree with Subscriber to perform certain services and create or provide certain deliverables, including but not limited to an App or Work Product, as more particularly described in an SOW, which may be entered into from time to time and, upon execution by the Parties, will be incorporated into and made part of this Agreement. Custom Services shall be more specifically described or defined in the applicable SOW. Unless otherwise expressly stated in a SOW and executed by an authorized signing officer of Brilliant, all Work Product, and all rights, titles, and interests therein, including all intellectual property rights and copyrights, shall be exclusively owned by Brilliant world-wide and in perpetuity but licensed to Subscriber on a non-exclusive and revocable basis. In the event of any conflict between any provision in a Statement of Work and this Agreement, this Agreement shall prevail and take priority, except to the extent that Brilliant agrees otherwise in an SOW executed by a duly authorized signing officer of Brilliant.

10. White Label License

  • Where Brilliant agrees in an SOW to grant a White Label License to Subscriber, Brilliant will grant to Subscriber a non-exclusive, non-transferable, revocable license, conditional upon Subscriber's continued compliance with this Agreement and the provisions of the applicable SOW, to use, rebrand, sublicense, and resell access to the Service to Subscriber's Registered Customers under Subscriber's own branding.
  • Nothing in any grant of a White Label License permits Subscriber to modify, reverse engineer, or modify the Service in any way other than such rebranding as may be permitted by Brilliant pursuant to a White Label License as specified in an SOW. While Subscriber may have the right to market and distribute the Service under a White Label License as its own brand and trademarks, Subscriber agrees to comply in all respects with this Agreement, including any branding guidelines and quality standards required by Brilliant.
  • In all cases, Subscriber must clearly disclose in such manner as Brilliant may require from time to time, and at any time, that the underlying platform and the Service is "Powered by Brilliant Harvest".
  • Unless otherwise provided in a Statement of Work accepted by Brilliant, all Work Product, including Apps, used by Subscriber under any White Label License from Brilliant shall be subject to the following:
    • All such App's shall be developed and programmed by Brilliant, at Brilliant's initial cost, as Work Product, but the costs of such development and programming will be included in the pricing for a White Label License and paid by Subscriber to Brilliant.
    • All intellectual property rights, and all other rights, titles, and interests of any kind in and to any App shall be exclusively owned by and reserved to Brilliant, and, to the extent Subscriber may obtain any such rights, irrevocably assigned in their entirety to Brilliant.
    • Subscriber must publish, market, license, or make any App available for download and use in such marketplaces as Brilliant may direct, in its sole discretion, including without limitation Apple's App Store, and, with respect to Android App's, Google Play. Subscriber will publish the App from its own developer account, as directed by Brilliant, and Brilliant will assist Subscriber in publication and launch of the App in the applicable marketplace.
    • Any required or applicable API (application programming interface or similar software) license, and any other required or applicable materials related to the App shall in all cases be subject to and conditional upon prior review and written approval by Brilliant and obtained or licensed at Subscriber's cost before any App may be published, marketed, provided, licensed, or, where permitted by Brilliant, sublicensed to any third party by Subscriber.
    • Any Custom Services required to develop API's or other materials not included in the fees for the White Label License, including development and services to process or modify Subscriber's data, or the data of Subscriber's Registered Customers, or other customers or users, into formats required for use in the App provided by Brilliant to Subscriber, shall be subject to additional Service Fees set by Brilliant and paid by Subscriber.
    • The terms and conditions of Subscriber's license agreement and privacy policy with respect to Subscriber's App and its own users and customers shall in all cases be provided by Brilliant and, in any case, subject to Brilliant's prior review and approval, in Brilliant's sole discretion. Subscriber will use only such license agreement provided by Brilliant with its own Registered Customers and Authorized Users, and Subscriber will not modify or amend such license agreement or privacy policy without the express written consent of Brilliant, nor will Subscriber not permit access to any App by any person without such person first accepting such license agreement and privacy policy as required by Brilliant.

11. DISCLAIMERS AND LIMITATION OF LIABILITY APPLICABLE TO ALL USERS OF THE SERVICE AND ANY CUSTOM SERVICES, INCLUDING SUBSCRIBER AND, FOR GREATER CERTAINTY, SUBSCRIBER'S ADMINISTRATORS, AUTHORIZED USERS, AND REGISTERED CUSTOMERS

  • EXCEPT IN THE CASE OF A VIOLATION BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 8 ABOVE (“CONFIDENTIAL INFORMATION”), AND THE INDEMNITIES SET FORTH IN SECTION 12, THE SERVICE AND ANY CUSTOM SERVICES ARE PROVIDED "AS IS", "WHERE IS", AND "AS AVAILABLE", WITHOUT ANY REPRESENTATION, WARRANTY, CONDITION, OR GUARANTEE OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND WHETHER ARISING OUT OF ANY CUSTOM OF TRADE OR STATUTE, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, FITNESS FOR PURPOSE, COMPLIANCE WITH ANY DESCRIPTION, ACCURACY, COMPLETENESS, TIMELINESS, OR NON-INFRINGEMENT. SUBSCRIBER AND ALL USERS AGREE TO NOT RELY SOLELY ON THE SERVICE BUT ALSO ON THEIR OWN EXPERIENCE, KNOWLEDGE, AND JUDGMENT.
  • BRILLIANT SHALL NOT BE LIABLE FOR AND SUBSCRIBER AND ALL USERS OF THE SERVICE WAIVE THE RIGHT TO CLAIM AGAINST BRILLIANT FOR ANY LOSS, INJURY, LIABILITY, DAMAGE, OR CLAIM OF ANY KIND WHATSOEVER RESULTING IN ANY WAY FROM THE SERVICE OR CUSTOM SERVICES, (INCLUDING THE OPERATION OR RESULTS OF ARTIFICIAL INTELLIGENCE OF ANY KIND) PROVIDED OR MADE AVAILABLE TO SUBSCRIBER AND ANY USER OF THE SERVICE BY BRILLIANT.
  • SUBSCRIBER AND ALL USERS OF THE SERVICE ACKNOWLEDGE THE RISK THAT INFORMATION AND THE CONTENT STORED AND TRANSMITTED ELECTRONICALLY THROUGH THE SERVICE MAY BE INTERCEPTED BY THIRD PARTIES. AND THAT THE SERVICE AND ARTIFICIAL INTELLIGENCE MAY BE SUBJECT TO ERRORS OR OMISSIONS. SUBSCRIBER AND ALL USERS OF THE SERVICE VOLUNTARILY, COMPLETELY AND SOLELY ACCEPT THAT RISK AND WILL NOT HOLD BRILLIANT LIABLE FOR ANY LOSS, DAMAGE, OR INJURY RESULTING FROM THE INTERCEPTION OF CONTENT, INFORMATION, OR DATA, OR ERRORS OR OMISSIONS IN THE SERVICE, INCLUDING ANY RELATED OR INCLUDED ARTIFICIAL INTELLIGENCE.
  • SUBSCRIBER ACKNOWLEDGES AND AGREES THAT BRILLIANT IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION, ECONOMIC LOSS, OR LOSS OF REVENUE, PROFITS, OR EXPECTED SAVINGS ARISING OUT OF RELATING TO THE SERVICE THIS AGREEMENT, INCLUDING ANY SOW HEREUNDER, OR THE SERVICE.
  • IN ALL CASES, SUBSCRIBER AGREES THAT THE LIABILITY OF BRILLIANT ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE AND HOWSOEVER CAUSED OR ARISING WILL NOT EXCEED THE TOTAL AMOUNT SUBSCRIBER HAS PAID FOR THE SERVICE PURSUANT TO THIS AGREEMENT WITHIN THE SIX MONTH PERIOD BEFORE THE DATE THE CLAIM AROSE AND, IF THE CLAIM ARISES OUT OF ANY CUSTOM SERVICES, THE TOTAL AMOUNT PAID FOR SUCH CUSTOM SERVICES.
  • THESE DISCLAIMERS AND LIMITATIONS IN THIS SECTION 11 SHALL IN ALL CASES APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER THOSE DAMAGES ARE FORESEEABLE OR WHETHER BRILLIANT HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
  • EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, EXCLUSION OF DAMAGES, OR AN INDEMNITY IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY BRILLIANT TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.

12. Indemnification.

  • Subscriber warrants and represents on its own behalf, and on behalf of its Administrators, Authorized Users, and Registered Customers, that none of the Content will be in breach of any term or condition of this Agreement, or infringe, violate, or misappropriate the rights, titles, or interests of any third-party Person, including, without limitation, intellectual property rights, copyrights, patent rights, privacy rights, or rights of publicity or personality.
  • Subscriber hereby agrees to defend, indemnify, and hold harmless Brilliant from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost, or expense, including lawyer's or attorneys’ fees, which arise from or relate to any of the following: (i) any breach by Subscriber, or any of Subscriber's Administrators, Authorized Users, or Registered Customers of any term, condition, warranty, representation, or obligation stated in this Agreement, including in any SOW, (ii) any negligent or deliberate acts or omissions of Subscriber's Administrators, Authorized Users, or Registered Customers; and (iii) any violation, infringement, or misappropriation of any third-party rights, including without limitation copyright, moral rights, and any other intellectual property rights; privacy rights and rights of personality or rights of publicity by Subscriber's Administrators, Authorized Users, or Registered Customers, or by any Content uploaded or posted to the Service by Subscriber or any of Subscriber's Administrators, Authorized Users, or Registered Customers. Brilliant will provide prompt notice to Subscriber of any indemnifiable event or loss that may come to the attention of Brilliant, but whether or not Brilliant provides such notice, Subscriber will undertake, at Subscriber’s own cost, the defense of any such claim, suit or proceeding with counsel reasonably acceptable to Brilliant. Brilliant reserves the right to participate in the defense of the claim, suit, or proceeding, at Brilliant's expense, with counsel of Brilliant's choosing.
  • Brilliant agrees to defend, indemnify, and hold Subscriber harmless from and against any loss, damage or costs in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Subscriber by a third party (i) alleging that the Service, or use of the Service as contemplated hereunder, infringes a Canadian or United States copyright or patent issued as of the date of final execution of this Agreement, or a Canadian or United States trademark of a third party or involves the misappropriation of any trade secret of a third party; provided, however, that Subscriber: (i) promptly gives written notice of the Claim to Brilliant; (ii) gives Brilliant exclusive control of the defense and settlement of the Claim (provided that Brilliant may not settle any Claim unless it unconditionally releases Subscriber of all liability); and (iii) provides to Brilliant, at Brilliant’s cost, all reasonable assistance. Brilliant shall not be required to indemnify Subscriber in the event of: (i) modification of the Service, including any Custom Services, by Subscriber in conflict with Subscriber’s obligations or as a result of any prohibited activity as set forth herein to the extent that the infringement or misappropriation would not have occurred but for such modification; (ii) use of the Service in combination with any other product or service not provided by Brilliant to the extent that the infringement or misappropriation would not have occurred but for such use; or (ii) use of the Service in a manner not otherwise contemplated by this Agreement to the extent that the infringement or misappropriation would not have occurred but for such use.

13. Miscellaneous Provisions

  • Relationship between the parties: The relationship of the Parties is that of independent contractors. Nothing in this Agreement, and no course of dealing between the Parties shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party's employees, contractors, or agents. Neither Party has the authority to bind or contract any obligation in the name of or on account of the other Party or to incur any liability or make any statements, representations, warranties, or commitments on behalf of the other Party, or otherwise act on behalf of the other.
  • Publicity: Subscriber grants to Brilliant the right, but not the obligation, to add Subscriber's name and company logo to Brilliant's customer list, website, and marketing materials. Brilliant may refer to Subscriber by name and/or logo in the foregoing, unless otherwise requested by Subscriber in writing. Brilliant grants the same right to Subscriber to use Brilliant's name and company logo on Subscriber's website and in verbal and written communications. Both parties agree to not disparage or publish negative information about the other.
  • Force Majeure: Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, insurrection, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labour disputes, terrorism, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, quarantines, or acts of God, and in addition any and all events, regardless of their dissimilarity to the foregoing, beyond the reasonable control of the Party deemed to render performance of the Agreement impracticable or impossible, for so long as such force majeure event is in effect.
  • Governing Law: Regardless of Subscriber's location, whether temporary or permanent, or place of residence, domicile, or physical presence, and regardless of whether the Service, including any Custom Services are provided virtually or otherwise, this Agreement shall in all respects be deemed a contract made in the Province of Alberta, Canada. Accordingly, this Agreement shall be governed by and construed and enforced in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable in Alberta without regard to any conflict of laws principles.
  • Venue: The Parties irrevocably submit to the exclusive jurisdiction of the courts of the Province of Alberta, sitting at Calgary, to adjudicate any disputes or claims which may arise out of or in connection with this Agreement or any other dealings or relationship between the Parties, and the Parties irrevocably waive any right to a trial by jury. Subscriber expressly undertakes and agrees to not commence any action or claim in any forum, venue, or jurisdiction other than the Province of Alberta, or, where the jurisdiction is exclusively federal, Canada, or by way of class proceedings or arbitration. Subscriber consents and agrees to enforcement of any final judgment from the courts of the Province of Alberta, or the federal courts of Canada if applicable, in any jurisdiction which may be Subscriber's residence or domicile, or with which Subscriber may be connected, or in which Subscriber may have assets, and Subscriber fully waives all rights it may have to contest a final judgment from the courts of Alberta or Canada, or the registration and enforcement of any such judgment in any other jurisdiction.
  • Good Faith Resolution: The Parties will attempt in good faith to resolve any controversy or claim arising out of or in connection with this Agreement by promptly conferring in negotiations between representatives of both Parties who have authority to settle the controversy. The Parties agree to exchange memoranda setting forth the issue(s) in dispute and that Party's position thereon, and the name(s) and title(s) of the representatives of that Party. If the matter is not resolved within fifteen days after one Party initiates a request for a conference of the representatives, either Party may initiate court proceedings as provided in this Agreement.
  • Assignment: Subscriber may not assign this Agreement, either in whole or part, without the express written consent of Brilliant. Any assignment without such consent shall be null and void. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors, permitted assigns and legal representatives of the Parties. Without limitation, Brilliant may freely assign this agreement in the course of any corporate reorganization, restructuring, merger, acquisition or sale of assets or securities of Brilliant.
  • Severability: If any provision or portion of this Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
  • Headings, Construction: The headings/captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit, or extend the scope or intent of the provisions to which they appertain.
  • Survival: Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement. Without limitation, the terms and conditions of Sections 8 ("Confidential Information"), 11 ("Limitation of Liability"), and12 ("Indemnification") shall survive and remain in force.
  • Rights Cumulative: The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
  • Notices: Unless otherwise agreed to by the Parties, all notices or other communications required under this Agreement shall be deemed effective when received and made in writing and delivered by electronic means to the other Party at the email address specified by such Party.
  • Waiver: No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
  • Entire Agreement: This Agreement, including any SOW hereunder, is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic, or otherwise. No change, modification, amendment, or addition of or to this Agreement or any part thereof shall be valid unless in writing and signed, including by virtual or electronic means, by authorized representatives of the Parties. The Parties acknowledge and agree that they are not relying upon any representations or statements made by the other Party or the other Party's employees, agents, representatives, or counsel regarding this Agreement, except to the extent such representations are expressly set forth in this Agreement.
  • Third Parties: Subscriber acknowledges and agrees that Brilliant may use third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
  • Integration: Brilliant may, but is not obligated to, provide the ability to integrate the Service with third-party products and services that Subscriber may use at Subscriber’s option and risk. Access to and use of any third-party products and services are subject to the separate terms and conditions required by the providers of the third-party products and services. Subscriber agrees that Brilliant shall have no liability arising from Subscriber’s use of any integrations or arising from any third-party products and services. Brilliant may modify or cancel any such integrations at any time without notice.
  • Amendments: Brilliant reserves the right to amend this Agreement. In the event of material changes to this Agreement, Brilliant will notify Subscriber, by email, or by other reasonable means of these changes prior to their enactment. Continued use of the Service by Subscriber after reasonable notice will be considered acceptance of any new terms or conditions. Non-material changes do not require notification.

14. Definitions

In this Agreement, the capitalized terms have the meanings stated as follows, or as set out elsewhere in this Agreement:

  • "Administrator" means an individual authorized by Subscriber to designate, add, or remove Authorized Users and/or additional Administrators, to designate, add or remove Registered Customers, and to commit Subscriber to additional services from Brilliant, including pursuant to an SOW, whether for Custom Services, under a White Label License, or otherwise.
  • "App" is an abbreviation for "application," and means software that can be downloaded, installed, used, operated, or made to run on a computer, tablet, smartphone, or other electronic device, and includes a mobile application or a piece of software that is installed and used on a mobile device.
  • "Authorized User" means an individual user accessing the Service by having been added to Subscriber's account as a user.
  • "Confidential Information" means any non-publicly available information, data, documents, records, or know-how of any kind considered proprietary or confidential by Disclosing Party, including but not limited to (i) information concerning Disclosing Party's products, business, and operations including, but not limited to, information relating to business plans, financial records, customers, employees, Subscribers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, product white papers, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems, or other intellectual property, of Disclosing Party and its affiliates that may be at any time furnished, communicated, or delivered by Disclosing Party to Receiving Party, whether in oral, tangible, electronic or other form, and whether directly or indirectly; (ii) the terms of any agreement, including this Agreement and any SOW hereunder, and the discussions, negotiations and proposals related to any such agreement; (iii) information acquired during any tours of or while present at a Party's facilities; and (iv) all other non-public information provided by Disclosing Party hereunder. Confidential Information includes the Content, but does not include information that: (i) was lawfully in Receiving Party's possession before receipt from Disclosing Party; (ii) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of Receiving Party; (iii) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party; (iv) Receiving Party receives from a third-party free to make such disclosure without, to the best of Receiving Party's knowledge, breach of any legal or contractual obligation; or (v) is disclosed by Receiving Party with Disclosing Party's prior written approval.
  • "Content" means any information, data, documents, records, or materials that Subscriber, or its Administrators, Authorized Users, or Registered Customers, uploads, or posts to the Service, but does not include Third-Party and Supplier Materials, or other materials, data, or information that are publicly available, and further does not include any Aggregate Data or Training Data.
  • "Custom Services" means services in addition to the Service which Brilliant agrees to provide pursuant to the terms and conditions of this Agreement under the heading Custom Services, as detailed in a specific SOW. Unless the context otherwise requires, all references to Custom Services will include any Work Product.
  • "Derived Data" means anonymized and aggregated data which Brilliant creates by processing customer and user data (including Content and Confidential Information of Subscriber and its Administrators, Authorized Users, and Registered Customers, and information about the foregoing, including data regarding system usage and Content trends and type) using processes that strip, remove, obscure, or anonymize all such data, combining it with other anonymized data into larger aggregate and anonymized data sets from multiple sources.
  • "Disclosing Party" means the Party disclosing Confidential Information to Receiving Party.
  • "Party" means either Brilliant or Subscriber, and "Parties" means both Brilliant and Subscriber.
  • "Person" means any individual, natural person, firm, partnership, corporation, or other entity recognized as a legal entity by applicable law.
  • "Receiving Party" means the Party receiving Confidential Information from Disclosing Party.
  • "Registered Customer" means any Person which has been invited and authorized by Subscriber to use the customer-facing features of the Service as made available by Brilliant in a limited capacity as a customer of Subscriber, including without limitation under a White Label License.
  • "Security Emergency" means any violation by Subscriber of this Agreement, or any actions or failure to take action by any Person, which could disrupt Brilliant's provision of the Service, or the business of other subscribers to the Service, or that provides or enables unauthorized third-party access to the Service or the Content.
  • "Service" shall mean all software (including software as a service, and software and services using or providing access to artificial intelligence, including but not limited to chatbots, machine learning, generative AI, and large language models) and all services offered or provided by Brilliant pursuant to this Agreement, including any software or services made available on a While Label basis to Subscriber for use with its Registered Customers. References to the Service will include Custom Services unless the context requires otherwise.
  • "Service Fees" means all fees and other charges in addition to Subscription Fees invoiced by Brilliant for Custom Services in accordance with (i) the terms of this Agreement, and (ii) as set out in any SOW made by the Parties.
  • "Subscription Fees" means the recurring fees paid by Subscriber for subscription to the Service as provided in this Agreement.
  • "SOW" means a Statement of Work as described under the heading "Custom Services" above.
  • "Subscriber" means the purchaser of licenses to the Service provided by Brilliant under this Agreement, including where purchasing Custom Services or a White Label License under an SOW, and all references to Subscriber shall include Subscriber's Administrators, Authorized Users, and Registered Customers unless the context requires otherwise.
  • "Third-Party and Supplier Materials" means third-party materials which are publicly available or are available for use or used by more than one subscriber to the Service, such as, by way of example only, manufacturer's, suppliers, distributors, wholesalers' or retailers' brochures or promotional materials, equipment manuals or specifications, parts catalogues, and similar materials.
  • "White Label License" has the meaning stated under the heading "White Label License" above.
  • "Work Product" means the results, deliverables, or product of Custom Services, tangible or intangible, which may include, without limitation, an App, and shall include all original works of authorship created in whole or in part by Brilliant and all inventions (whether or not patentable) invented or discovered in whole or in part by Brilliant pursuant to this Agreement, including, but not limited to, software, data, materials, documentation, computer programs, images, film, audio, video, animations, and any and all works subject to copyright, including all worldwide rights therein under any patent, copyright, trade secret, trademark, confidential or proprietary information right, or other property right, whether prior to the date of this Agreement or in the future.