BSNEE License Agreement

BSNEE License Agreement

THIS BRIGHTSIGN NETWORK ENTERPRISE EDITION SOFTWARE LICENSE AGREEMENT (THIS “AGREEMENT”) FORMS A BINDING AGREEMENT BETWEEN THE END USER (“YOU”) AND BRIGHTSIGN LLC (“BRIGHTSIGN”), A DELAWARE LIMITED LIABILITY COMPANY THAT OWNS THE SOFTWARE (“SOFTWARE”) IDENTIFIED IN YOUR ORDERING DOCUMENT (“ORDER FORM”). 

IF YOU ARE PLACING AN ORDER ON BEHALF OF A COMPANY OR OTHER ENTITY, THEN “YOU” MEANS THAT ENTITY, AND YOU ARE BINDING THAT ENTITY TO THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND THAT, IF THE END USER IS AN ENTITY, THIS AGREEMENT AND EACH ORDER FORM IS ENTERED INTO BY AN EMPLOYEE OR AGENT WITH ALL NECESSARY AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IF YOU DO NOT (OR YOUR REPRESENTATIVE DOES NOT) HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE.

THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE WHICH IS THE EARLIER OF (A) YOUR INITIAL ACCESS TO OR USE OF THE SOFTWARE OR (B) THE EFFECTIVE DATE OF THE FIRST ORDER REFERENCING THIS AGREEMENT.

BY PLACING AN ORDER FOR, OR OTHERWISE USING OR ACCESSING, THE SOFTWARE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT USE OR ACCESS THE SOFTWARE.

1. LICENSE OF SOFTWARE

1.1 LICENSE GRANT. Subject to the terms and conditions of this Agreement, BrightSign hereby grants to you, during the Term (as defined in the Order Form), a non-exclusive, non-transferable, non-sublicensable, revocable right and license to use the BrightSign Network Enterprise Software product as set forth in the Order Form in object code form for internal business purposes only, and solely within the scope of the license type purchased under the Order Form; in each case as specified in the Order Form.

1.2 RESTRICTIONS ON USE. You may not: (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any commercial use of, outsource, use on a timeshare or service bureau, or use in an application service provider or managed service provider environment, the Software, in each case except to the extent expressly permitted by BrightSign in writing (including in the Order Form); (b) copy the Software onto any public or distributed network, except that you may make one copy on an internal and secure cloud computing environment and solely for back-up, disaster recovery, or testing purposes; (c) cause or permit the decompiling, disassembly, or reverse engineering of any portion of the Software, or attempt to discover or permit the discovery of any source code or other operational mechanisms of the Software; (d) modify, adapt, translate or create derivative works, nor allow any of those actions to occur, based on all or any part of the Software; (e) modify any proprietary rights notices which appear in the Software or components thereof; or (f) use any Software in violation of any applicable laws and regulations (including any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth in Section 1.1. You shall, at your own expense, obtain all necessary customs, import, or other governmental authorizations and approvals.

1.3 PERSONAL DATA. The Software is not intended to be used to collect, store, process, transmit or make available any personally identifiable information, personal data or financial, medical, or other protected information (collectively, “Personal Data”). You will not, and will not permit any third party to, utilize the Software to collect, store, process, transmit or make available any Personal Data. Without limiting the foregoing, you agree that BrightSign shall not be liable or responsible in any way to you or any third party for your collection, use or disclosure of Personal Data. You will indemnify, defend, and hold harmless BrightSign, its suppliers, officers, directors, employees, agents, successors, subsidiaries, sublicenses and assigns from and against any and all claims, damages, losses, costs and liabilities (including reasonable attorneys’ fees and court costs) arising out of or related to your violation of this Section 1.3, or any collection, storage, processing, transmission, making available or other use of Personal Data utilizing the Software.

1.4 UNAUTHORIZED USE. You shall notify BrightSign immediately of any unauthorized use of, or any other known or suspected breach of security or misuse of, the Software. You are responsible for use of the Software by any and all of your employees, contractors, or other users that you allow to access the Software.

1.5 SUPPORT AND MAINTENANCE. “Support” is defined as the responsibilities set forth in Exhibit A as “Standard Support.” “Maintenance” means the provision of error corrections, bug fixes, new releases, updates, product extensions, and enhancements to the Software, in each case as made commercially available by BrightSign generally to its customers. Support and Maintenance are not available to you unless you are within the term of your licenses as indicated on the Order Form. Upon expiration or termination of this Agreement for any reason, BrightSign will have no further obligation to provide Support and Maintenance to you.

1.6 SYSTEM REQUIREMENTS. You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the documentation that may accompany the Software (“Documentation”). BrightSign will have no obligations or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by BrightSign.

2. FEES AND PAYMENT

You or your Reseller (as defined in Section 9) will be billed an annual license fee set forth in your Order Form that will be automatically renewed and billed annually after the initial Term, to avoid lapse of coverage at the prices set forth in the Order Form for the Term indicated in the Order Form. You or your Reseller, as applicable (see Section 9, “Reseller Orders”), will pay invoices within thirty (30) days from the date of the invoice (the “Invoice Due Date”) unless otherwise indicated in your Order Form. All payment obligations are non-cancelable, and all amounts paid are non-refundable. The fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and you will be responsible for payment of all such taxes, levies, or duties, excluding taxes based on BrightSign’s income. You represent and warrant that the billing and contact information provided to BrightSign is accurate and complete, and BrightSign will have no responsibility for any invoices that are not received due to inaccurate or missing information provided by you or your Reseller. You will pay interest on all payments past due at the rate of 1.5% or the maximum rate allowed by law, whichever is less. Brightsign may terminate this Agreement and revoke your license if your or your Reseller’s non-payment has not been cured within ten (10) days of BrightSign’s written notice of non-payment. You or your Reseller will remain responsible for your full payment obligations regardless of any termination of this Agreement for non-payment.

3. CONFIDENTIALITY

3.1 SCOPE AND RESTRICTIONS. “Confidential Information” means all information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“) that is designated in writing as confidential or, if disclosed in a non-tangible format, identified at the time of disclosure, and in writing within thirty (30) days of disclosure, as confidential. This Agreement, the pricing for the Software and Support and Maintenance, any technical or other documentation relating to the Software and any and all information regarding BrightSign’ business, products, and services is BrightSign Confidential Information. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its (a) employees who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder and (b) professional advisers, and actual or prospective investors, provided that such employees, investors, acquirers and professional advisers are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party and permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Section 3.1 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.

3.2 EQUITABLE RELIEF. Each party acknowledges that breach of Section 1.2 or 3.1 could cause substantial harm to the non-breaching party for which damages alone will not be a sufficient remedy and that, therefore, upon any breach or threatened breach of these Sections 1.2 or 3.1, the non-breaching party will be entitled to appropriate injunctive relief in addition to other remedies it may have at law or equity.

4. PROPRIETARY RIGHTS; FEEDBACK

4.1 RESERVATION OF RIGHTS. The Software is licensed, not sold, and made available to you on a limited license or access basis, and no ownership right is conveyed to you irrespective of the use of terms such as “purchase” or “sale”. BrightSign and its licensors have and retain all right, title, and interest, including all intellectual property rights, in and to the Software, the Documentation and any related products or services.

4.2 FEEDBACK. You may from time to time provide to BrightSign suggestions, comments, ideas, corrections, or recommendations for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Software, the Documentation, or other BrightSign products or services. Any Feedback you submit to us will not be considered your Confidential Information. BrightSign will have full discretion to determine whether to implement the Feedback. You hereby grant to BrightSign a worldwide, perpetual, irrevocable, royalty-free, and fully transferable license to incorporate the Feedback into any of BrightSign products or services, to use, reproduce, perform, display, distribute, prepare derivative works, and to otherwise fully exercise and exploit the Feedback for any purpose, with no expectation or obligation of remuneration or attribution of any kind.

4.3 OPEN SOURCE. Notwithstanding the other provisions of this Agreement, certain components of the Software are, or are modifications of, “free” or “open source” software (“Separately Licensed Code”). Separately Licensed Code is subject to the terms and conditions of its applicable license, including the GPL v2, LGPL v2.1, AFL v2.1, and Artistic licenses, and is not subject to this Agreement or the license granted herein. As required by the terms of the relevant Separately Licensed Code licenses, BrightSign makes the “free” and “open source” code provided under such licenses, and BrightSign’s modifications to such code, available on BrightSign’s website, at no charge. Please see the README-Sources file provided with this Software and visit http://brightsign.zendesk.com/entries/314919-brigh… for detailed information on BrightSign’s use of Separately Licensed Code, the relevant licenses and, where required, the relevant source code.

5. TERM AND TERMINATION. The initial Term is as specified in the Order Form and shall automatically renew for successive terms of the same length as the initial Term (each renewal term, together with the initial Term, is referred to collectively as the “Term”) unless either party gives the other party a written notice of its intent not to renew thirty (30) days prior to the expiration of the then-current Term. If either party fails to comply with any provision of this Agreement, and such breach has not been cured within thirty (30) days after receipt of written notice thereof, the non-breaching party may terminate this Agreement, except that BrightSign may immediately terminate this Agreement upon your breach of Section 1.2 and may terminate within ten (10) days of written notice of uncured non-payment. Upon expiration or termination for any reason, (i) you shall cease any further use of the Software and destroy any copies of the Software and Documentation within your possession and control and, upon BrightSign’s request, certify in writing that you have complied with such obligations and permit BrightSign to audit your facilities and equipment to verify such compliance, and (ii) each Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information in the Receiving Party’s possession or control. All fees that have accrued as of such expiration or termination, and Sections 1.2, 1.3, 2, 3, 4, 6.2, 7, 8, 10, and 12 will survive any expiration or termination of this Agreement, as well as any other term that by its nature should survive expiration or termination.

6. WARRANTIES

6.1 LIMITED WARRANTY. BrightSign warrants that, during the first thirty (30) days following the date the Software is made available to you pursuant to the Order Form (the “Warranty Period”), the Software will, in all material respects, conform to the functionality described in the related BrightSign documentation provided with the Software. BrightSign’s sole and exclusive obligation, and your sole and exclusive remedy, for a breach of this warranty shall be that BrightSign shall be required to use commercially reasonable efforts to modify the Software to conform in all material respects with the BrightSign documentation, and if BrightSign is unable to materially restore such functionality within thirty (30) days from the date of written notice of said breach, You shall be entitled to terminate this Agreement upon written notice and receive a pro-rata refund of the unused fees which have been paid in advance for such Software.

6.2 WARRANTY DISCLAIMER. EXCEPT AS EXPLICITLY PROVIDED HEREIN, BRIGHTSIGN EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR OPERATION OF THE SOFTWARE. BRIGHTSIGN EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE SOFTWARE.

7. INDEMNIFICATION.

7.1 BY BRIGHTSIGN. BrightSign agrees to indemnify, defend, and hold you harmless from any losses, liabilities, costs, and expenses (including reasonable attorney fees) (“Losses”) arising out of a third-party claim alleging that the Software is infringing a U.S. patent issued before the Effective Date or a copyright or trademark, or that BrightSign has misappropriated a trade secret related to the Software. In the event that the use of the Software is, or in BrightSign’s sole opinion is likely to, become subject to such a claim, BrightSign, at its option and expense, may (a) replace the applicable Software with functionally equivalent non-infringing technology or (b) obtain a license for your continued use of the applicable Software, or, if the foregoing alternatives are not reasonably available to BrightSign, (c) terminate this Agreement and refund any sums prepaid for the unused Term, if any. The foregoing indemnification obligation of BrightSign will not apply: (1) if the Software is modified by you; (2) if the Software is combined with other non-BrightSign products, applications, or processes not authorized by BrightSign, but solely to the extent that the alleged infringement is caused by such combination; or (3) to any unauthorized use of the Software. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF BRIGHTSIGN AND THE EXCLUSIVE REMEDY OF YOU, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO THE SOFTWARE.

7.2 BY END USER. You agree to indemnify, defend, and hold BrightSign harmless from any and all Losses payable by you to third parties resulting from a third-party claim arising from or relating to your breach of any term or condition of this Agreement.

7.3 INDEMNIFICATION REQUIREMENTS. In order to claim any indemnification under this Section 7, the indemnified party must promptly provide the indemnifying party with notice of any claim that the indemnified party believes is within the scope of the obligation to indemnify. The indemnified party may, at its own expense, assist in the defense if it so chooses, but the indemnifying party shall control the defense and all negotiations relative to the settlement of any such claim. Any settlement intended to bind the indemnified party shall not be final without the indemnified party’s written consent, which consent shall not be unreasonably withheld, conditioned, or delayed.

8. LIMITATION OF LIABILITY

IN NO EVENT WILL BRIGHTSIGN BE LIABLE TO YOU OR ANY OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BRIGHTSIGN WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL BRIGHTSIGN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO BRIGHTSIGN UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD DIRECTLY PRECEDING THE FILING OF THE CLAIM FROM WHICH ALLEGED DAMAGES AROSE.

9. RESELLER ORDERS

This Section 9 applies if you purchase a subscription or license to the Software through an authorized partner or reseller of BrightSign (“Reseller”):

9.1 Instead of paying BrightSign, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. BrightSign may suspend or terminate your rights to use the Software if BrightSign does not receive the corresponding payment from the Reseller.

9.2 Instead of an Order Form with BrightSign, your order details (e.g., Software and Term) will be as stated in the order placed with BrightSign by the Reseller on your behalf, and the Reseller is responsible for the accuracy of any such order as communicated to BrightSign.

9.3 If you are entitled to a refund under this Agreement, then unless otherwise specified by BrightSign, BrightSign will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.

9.4 Resellers are not authorized to modify this Agreement or make any promises or commitments on BrightSign’s behalf, and BrightSign is not bound by any obligations to you other than as set forth in this Agreement.

9.5 The amount paid or payable by the Reseller to BrightSign for your use of the applicable Software under this Agreement will be deemed the amount actually paid or payable by you to BrightSign under this Agreement for purposes of calculating the liability cap in Section 8 (Limitation of Liability).

10. EXPORT. The Software is subject to export restrictions by the United States Government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your download of, access to, and use of the Software. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s denied persons, entity, or unverified lists or the U.S. Treasury Department’s list of specially designated nationals and consolidated sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country. You also certify that you are not a prohibited person nor owned, controlled by, or acting on behalf of a prohibited person. You agree not to use or provide the Software for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.

11. FORCE MAJEURE. BrightSign will not be responsible or liable to you or any third party for any defaults or delays due to Acts of God, or the public enemy, acts or demands of any government or governmental agency, fires, floods, accidents, pandemics, civic unrests or war, virus, distributed denial of service (“DDoS”) or hacking attacks or other unforeseeable causes beyond its control (each, a “Force Majeure Event”).

12. MISCELLANEOUS. This Agreement shall be governed by and construed under the laws of the State of California without regard to its conflict of laws rules. The parties consent to the exclusive jurisdiction and venue of the courts located in Santa Clara County, California for any disputes arising out of or relating to this Agreement. Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver of such rights. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, that provision will be amended to achieve as nearly as possible the same effect of the original provision and the remainder of this Agreement will remain in full force and effect. Any modification to this Agreement must be in writing and signed by a duly authorized representative of both parties. This Agreement shall control over additional or different terms of any purchase order, confirmation, invoice, or similar document, even if accepted in writing by both parties, and waivers and amendments to this Agreement shall be effective only if made in writing and clearly understood by both parties to be an amendment or waiver to this Agreement. This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter hereof and supersedes any and all prior understandings or agreements between the parties relating to the subject matter of this Agreement. The rights and remedies of the parties under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Product. You may not assign this Agreement to any third party without BrightSign’s prior express written consent. Any purported assignment in violation of this section shall be null and void. You agree that BrightSign may identify you as a customer by trade name and logo, and may describe your business, in BrightSign’s marketing materials and on the web, provided that you may opt-out of such marketing by sending an email to pr@brightsign.biz. Any notice under this Agreement must be given in writing. BrightSign may provide notice to you via email we have on file for you or through your account. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it. You will provide notice to BrightSign by a letter delivered by a nationally recognized overnight delivery service or first-class postage prepaid mail to BrightSign at the following address: BrightSign LLC, P.O. Box 320250, Los Gatos, CA 95032-0104, Attn: Legal, with a copy to legal@brightsign.biz. Notice to BrightSign shall be deemed given when received by BrightSign. For purposes of this Agreement, “including” means “including without limitation”.

EXHIBIT A
TECHNICAL SUPPORT

GENERAL REQUIREMENTS. BrightSign will provide access to a ticketing system and email address, which will be available 24 hours per day, 7 days per week. The Technical Support email account will be maintained by qualified support specialists, who will use commercially reasonable efforts to answer questions and resolve problems regarding the Software.

HOURS OF OPERATION. Technical Support personnel are available to answer tickets 5 days per week from Monday through Friday from 8 a.m. PST – 5 p.m. PST, excluding weekends and observed national holidays. Support availability may occasionally vary from stated hours due to downtime for systems and server maintenance, company events, and circumstances beyond the control of BrightSign.

ERROR CLASSIFICATION. The reported errors and defects are classified in the following manner:

RESPONSE TIME OBJECTIVES. BrightSign will use commercially reasonable efforts to respond to error reports within 1 (one) business day for Urgent and High errors. BrightSign will use reasonable means to repair the error and keep You informed of progress. BrightSign makes no representations as to when a full resolution of the error may be made.

* THESE ARE ESTIMATED, NOT GUARANTEED, RESOLUTION TIMES

AUTHORIZED SUPPORT CONTACTS. Support and maintenance will be provided solely to your authorized support contacts. Your Order Form will indicate a maximum number of authorized support contacts for Company’s license level. You will be asked to designate its authorized support contacts, including its primary email address.

DEFECT RESOLUTION. If there is a defect in the Software, BrightSign will, at its sole option, repair that defect in the version of the Software that you are currently using or instruct you to install a newer version of the Software with that defect repaired. BrightSign reserves the right to provide you with a workaround in lieu of fixing a defect should it in its sole judgment determine that it is more effective to do so.

EXCLUDED CAUSES. BrightSign shall not be obligated to provide any Support as a result of: (i) your failure to use the Software in accordance with the applicable documentation; (ii) any modification of the Software by you or any third party not at the express instruction of BrightSign; (iii) your failure to use corrections or updates previously provided to you by BrightSign; (iv) malfunction, defect or failure of hardware, equipment, software, networks or any other item not provided by BrightSign; (vi) failure by you to pay applicable fees or if you are not in compliance with any term or condition of this Agreement; (vi) your failure to report a problem within 48 hours of becoming aware of the problem; or (vii) any Force Majeure Event or (b) act or omission by you or your affiliates and your or your affiliates’ respective employees, contractors, agents or representatives, third party vendors or service providers of you or any third party.

END USER OBLIGATIONS. You must provide all available information, access, and full good faith cooperation reasonably necessary to facilitate the provision of Support by BrightSign. The information you are expected to provide when submitting a support ticket includes:

• A detailed description of the problem
• Description of the operating environment
• A list of all hardware components, operating systems, and networks
• A reproducible test case
• Any log files, trace, and systems files
• A list of contacts (including name, email address, and phone number) of individuals authorized to issue service requests on your behalf. These authorized contacts must have the access and authority to administer or configure the Software as required by BrightSign.

You are responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Software, including, without limitation, computers, computer operating systems, data storage, network devices, and web browsers.

You shall be solely responsible for maintaining procedures external to the Software for reconstruction of lost or altered files, data, or programs to the extent that it deems necessary and for performing any such reconstruction.

You shall be solely responsible for protecting and backing up the data and information stored on the computers on which the Software is used, and should confirm that the data and information is protected and backed up in accordance with any internal or regulatory requirements as applicable before contacting BrightSign for Support. BrightSign will not be responsible for lost data or information in the event of errors or other malfunction of the Software or computers on which the Software is used.

Your failure to provide the required information or cooperation shall relieve BrightSign of its support obligations under this Agreement.

ENGINEERING SUPPORT

In the event BrightSign estimates that the requested Support service would require engineering services outside of the scope a regular support engagement (as determined by BrightSign), BrightSign may (but is not obligated) offer you to provide such custom engineering services for an additional fee to be mutually agreed on by the parties.