The Most Powerful AI Helpdesk For Equipment Dealers
Brilliant Harvest Logo

Terms of Service - End User.

End User Terms Of Service

The following End User License Agreement ("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 and is offered to you by Brilliant pursuant to a Subscription Agreement between Brilliant and your applicable Subscriber/Dealer. By accepting this Agreement, or by using the Service (as defined below), you are agreeing to be legally bound by the terms and conditions of this Agreement. If you do not accept this Agreement, you may not use the Service.

Capitalized terms have the meanings stated in Section 12 below.

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 AND IN THE APPLICABLE SUBSCRIPTION AGREEMENT: AN ADMINISTRATOR, AN AUTHORIZED USER, OR A REGISTERED CUSTOMER. YOUR ACCESS TO THE SERVICE IS GRANTED IN YOUR CAPACITY AS ONE OF THE FOREGOING AND PURSUANT TO A SUBSCRIPTION AGREEMENT BETWEEN BRILLIANT AND THE SUBSCRIBER/DEALER UNDER WHICH YOU ACCESS THE SERVICE. IN THE EVENT OF ANY CONFLICT BETWEEN THIS AGREEMENT AND THE APPLICABLE SUBSCRIPTION AGREEMENT, THE SUBSCRIPTION AGREEMENT WILL GOVERN AND TAKE PRIORITY.

1. Limited License to Use the Service

  • Conditional upon your compliance with this Agreement, and the applicable Subscription Agreement remaining in good standing and full effect, Brilliant grants you a non-exclusive, non-transferable, limited, and revocable license, with no right to sublicense, to access and use the Service. The Service is licensed, not sold.
  • You agree to comply in all respects with all the terms and conditions of this Agreement.
  • You will not permit any other Person to access or use the Service.
  • Except for the non-exclusive license granted pursuant to this Agreement, you acknowledge and agree 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 has the right 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, subject to any obligation on the part of Brilliant to notify the applicable Subscriber/Dealer. Continued use by you of the Service following any modification constitutes your 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/Dealer. However, Brilliant reserves the right and ability to temporarily suspend operations without notice to you 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, and you consent to being contacted by Brilliant.

2. Payment, Refunds, and Subscription Changes

  • Payment to Brilliant of any applicable fees is made by the applicable Subscriber/Dealer. The consideration for this Agreement with you is the benefits that flow from your access to the Service, and the payments made by the applicable Subscriber/Dealer to Brilliant to permit your access pursuant to the applicable Subscription Agreement.
  • The App may provide you with opportunities to purchase products and services from your applicable Subscriber/Dealer and other parties via an online store or otherwise. You consent and agree to the App providing you with commercial electronic messages offering such opportunities. Where those messages originate with Brilliant, you may opt out at any time as provided in the message, and as stated in Brilliant's privacy policy. Otherwise, you may opt out pursuant to the link provided by the third-party send of the message. The terms and conditions of any such purchase and sale, including but not limited to warranties, refund policies, and shipping terms, conditions, and costs, will be dealt with at the time of any purchase by you. You consent and agree to the App providing you with commercial electronic messages offering such opportunities. You consent and agree to the App providing you with commercial electronic messages offering such opportunities.

3. Acceptable Use of the Service

  • Logging in to the Service requires you to accept the terms and conditions of this Agreement. Brilliant may amend this Agreement at any time. In all cases, you agree to the following:
    • You 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 otherwise with the express written permission of Brilliant;
    • You 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;
    • You 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.;
    • You 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

  • You are authorized to enter into this Agreement, and to access and use the Service because you are an Authorized User, which may include an Administrator, or a Registered Customer pursuant to the applicable Subscription Agreement. You are required to, and agree to provide your full legal name, a valid email address, a valid mobile phone number and any other information reasonably requested by the Service or by Brilliant.
  • You will be provided with a unique identifier ("Credentials") to access and use the Service. Credentials shall only be used by you, and shall not be shared with, or used by any other Person, including other Authorized Users.
  • If you are designated by Subscriber/Dealer as an Administrator, you shall have the rights of an Administrator of Subscriber/Dealer's account, including the ability to designate multiple Authorized Users as Authorized Users, or as Registered Customers or additional Administrators. You are deemed to be acting on the authority of Subscriber/Dealer, with the full knowledge, approval, and permission of Subscriber/Dealer, and you warrant and represent that you have such authority and approval with the full knowledge of Subscriber/Dealer. In all cases, you shall be fully liable to Brilliant and to Subscriber/Dealer for your conduct.
  • If you are designated by the Subscriber/Dealer as a Registered Customer, you shall only have the ability to access the customer facing aspects of the Service, and portions of the Service may not be visible or accessible to you.
  • You 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, or to Brilliant The applicable Subscriber/Dealer is obligated to implement policies and procedures to prevent unauthorized use of Credentials and to promptly notify Brilliant upon suspicion or learning that Credentials have been lost, stolen, compromised, or misused. You agree to fully cooperate with the applicable Subscriber/Dealer to give effect to the foregoing.
  • Brilliant may notify the applicable Subscriber/Dealer, 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/Dealer's Content (a “Security Breach”). A Security Breach may result in you being unable to access the Service.
  • Where the Service is made available to you via an app operating on a mobile device, such device must be capable of running the app, and you will ensure that the device is of acceptable functionality to do so. You 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. You will not rent, lease, lend, sell, redistribute, or sublicense the App. You 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/Dealer or, if applicable, you, or 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 does 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.
  • You applicable Subscriber/Dealer has granted 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/Dealer, without attribution or payment of consideration. To the extent you upload or provide any Content, you irrevocably consent and agree to the foregoing.
  • 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/Dealer 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. To the extent the foregoing is applicable to you, you irrevocably consent and agree to the foregoing.
  • 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/Dealer.

6. Cancellation, Suspension, and Termination

  • Subscriber/Dealer or Subscriber/Dealer's Administrators are solely responsible for canceling subscriptions. An Administrator may cancel a subscription at any time by accessing the Service as applicable, and any cancellation shall be deemed to be made with the full authority of Subscriber/Dealer. 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 will have no liability of any kind to you for cancellation of this Agreement or your access to the Service.
  • Brilliant in its sole discretion has the right to suspend or discontinue providing the Service to you without notice for actions that (a) are in material violation of this Agreement, including failure of the applicable Subscriber/Dealer to pay amounts due as and when due, or (b) create a Security Emergency.
  • If you use the Service to materially violate this Agreement in a way that does not create a Security Emergency, Brilliant may provide the applicable Subscriber/Dealer with notice of such violation, which may result in suspension of your access to the Service or termination of this Agreement.
  • 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/Dealer, or a designated Authorized User if the Administrator is unable to be reached. Except as expressly provided in the applicable Subscription Agreement, Brilliant shall have no obligation to you to return to you any Content related to your use of the Service. You agree to retain copies of all Content you may upload into the Service.

7. Agreement to Communicate and Contract Electronically.

  • You agree to communicate, transact, and contract by electronic means. Brilliant may correspond or convey information or documentation to you via email, text message, or other similar means, unless your applicable Subscriber/Dealer 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/Dealer except as expressly stated in this Agreement or any applicable SOW.

9. DISCLAIMERS AND LIMITATION OF LIABILITY APPLICABLE TO ALL USERS OF THE SERVICE

  • THE SERVICE IS PROVIDED TO YOU "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. YOU AGREE TO NOT RELY SOLELY ON THE SERVICE BUT ALSO ON YOUR OWN EXPERIENCE, KNOWLEDGE, AND JUDGMENT.
  • BRILLIANT SHALL NOT BE LIABLE TO YOU, AND YOU 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 (INCLUDING THE OPERATION OR RESULTS OF ARTIFICIAL INTELLIGENCE OF ANY KIND) PROVIDED OR MADE AVAILABLE TO YOU BY BRILLIANT.
  • YOU 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. YOU 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.
  • YOU ACKNOWLEDGE AND AGREE THAT BRILLIANT IS NOT AND WILL NOT BE LIABLE TO YOU 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 OR THIS AGREEMENT.
  • IN ALL CASES, SUBSCRIBER/DEALER AGREES THAT THE LIABILITY OF BRILLIANT ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE AND HOWSOEVER CAUSED OR ARISING WILL BE COMPENSABLE ONLY TO THE APPLICABLE SUBSCRIBER/DEALER, AND NOT TO YOU, AND SHALL BE SUBJECT TO THE LIMITATIONS IN THE APPLICABLE SUBSCRIPTION AGREEMENT.
  • DEALERS OR SUBSCRIBERS ONLY INTRODUCE YOU TO THE SERVICE, AND THE SERVICE IS MADE AVAILABLE AND PROVIDED TO YOU ONLY BY BRILLIANT. ACCORDINGLY, YOU SHALL HAVE NO CLAIM FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION SPECIAL, DIRECT, 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 OR THIS AGREEMENT AGAINST ANY DEALER OR SUBSCRIBER. ANY CLAIM YOU MAY HAVE ARISING OUT OF THE SERVICE OR UNDER THIS AGREEMENT MAY ONLY BE BROUGHT, AND ONLY TO THE EXTENT IT IS AVAILABLE AS PROVIDED IN THIS AGREEMENT, AGAINST BRILLIANT.
  • THESE DISCLAIMERS AND LIMITATIONS IN THIS SECTION 9 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 YOU AND BRILLIANT. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY BRILLIANT TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND BRILLIANT. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.

10. Indemnification

  • You warrant and represent that none of the Content you provide or upload 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.
  • You therefore agree 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 you of any term, condition, warranty, representation, or obligation stated in this Agreement, (ii) any negligent or deliberate acts or omissions by you; 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 you, or by any Content uploaded or posted to the Service by you.

11. Miscellaneous Provisions

  • Relationship between the parties: The relationship between you and Brilliant is that of independent contractors. Nothing in this Agreement, and no course of dealing between you and Brilliant shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between you and Brilliant.
  • Governing Law: Regardless of your location, whether temporary or permanent, or place of residence, domicile, or physical presence, and regardless of whether the Service is 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: You 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 you and Brilliant, and you irrevocably waive any right to a trial by jury. You expressly undertake and agree 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. You consent and agree 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 your residence or domicile, or with which you may be connected, or in which you may have assets, and you fully waive all rights you 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.
  • Assignment: You 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 you and Brilliant. 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"), 9 ("Limitation of Liability"), and10 ("Indemnification") shall survive and remain in force.
  • Rights Cumulative: The rights and remedies of Brilliant herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
  • Notices: Unless otherwise agreed to by Brilliant, 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 applicable Subscriber/Dealer on your behalf, or to you at the email address specified by you.
  • Waiver: No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of Brilliant. The failure of Brilliant to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of Brilliant's right to enforce such provision or any other provision of this Agreement thereafter.
  • Entire Agreement: This Agreement is the entire agreement between you and Brilliant with respect to the subject matter hereof and supersedes any prior agreement or communications between you and Brilliant, 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 an authorized representative of Brilliant. You acknowledge and agree that you are not relying upon any representations or statements made by Brilliant, except to the extent such representations are expressly set forth in this Agreement.

12. 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/Dealer to designate, add, or remove Authorized Users and/or additional Administrators, to designate, add or remove Registered Customers, and to commit Subscriber/Dealer 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/Dealer'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, Subscriber/Dealers, 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/Dealer, 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.
  • "Derived Data" means anonymized and aggregated data which Brilliant creates by processing customer and user data (including Content and Confidential Information of Subscriber/Dealer 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 you, and "Parties" means both Brilliant and you.
  • "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/Dealer to use the customer-facing features of the Service as made available by Brilliant in a limited capacity as a customer of Subscriber/Dealer, including without limitation under a White Label License.
  • "Security Emergency" means any violation by Subscriber/Dealer 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/Dealer for use with its Registered Customers. References to the Service will include Custom Services unless the context requires otherwise.
  • "Subscription Agreement" means the master agreement pursuant to which Subscriber/Dealer subscribes to the Service and authorizes Subscriber/Dealer's Administrators, Authorized Users, Registered Customers, and you to enter into this Agreement.
  • "Subscriber/Dealer" means the purchaser of licenses to the Service provided by Brilliant under this Agreement and is typically your dealer. All references to Subscriber/Dealer shall, unless the context requires otherwise, include Subscriber/Dealer's Administrators, Authorized Users, and Registered Customers.