END USER LICENCE AGREEMENT
PLEASE READ CAREFULLY: BRIGHTDAY TECHNOLOGIES (“BRIGHTDAY”) IS WILLING TO LICENSE THE SOFTWARE IDENTIFIED ABOVE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SOFTWARE LICENSE AGREEMENT (THE "AGREEMENT"). BY CHECKING “I AGREE TO THE BRIGHTDAY LICENSE AGREEMENT” ON THE BRIGHTDAY DOWNLOAD PAGE, OR BY INSTALLING, UPLOADING, ACCESSING OR OTHERWISE USING ALL OR ANY PORTION OF THE SOFTWARE (AS DEFINED BELOW), YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, AND ALL REFERENCES TO "YOU" SHALL APPLY TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT WISH TO BE BOUND BY THE TERMS OF THIS AGREEMENT, THEN DO NOT DOWNLOAD, INSTALL, UPLOAD, ACCESS OR OTHERWISE USE THE BRIGHTDAY SOFTWARE.
DEFINITIONS. “Software” means the computer programs, applications, tools and platforms offered by Brightday to provide electronic data analysis, processing, storage and transmission services for workspaces, and any updates or error corrections thereto provided by
Brightday. “Computer” means computers, including desktop or laptop computers, mobile devices, or file servers, used for general computing functions (such as, but not limited to, word processing, e-mail, general purpose Internet browsing and office suite productivity
tools). "Authorized Number of Computers" means the number of Computers that the Software may be loaded as shown by the quantity of licenses purchased by you as indicated on your invoice for the Software. "You" means you personally if you license the Software for yourself, or the company or other legal entity for which you license the Software (but not the affiliates, subsidiaries or other related legal entities of such company or legal entity).
LICENSE AND TERM. Subject to the terms and conditions of this Agreement, Brightday grants to you a nonexclusive, nontransferable, limited license to install and use the Software. The term of the license depends on what you downloaded or purchased.
(a) The free trial (demo) license may be used for a period of 60 days from the date that you receive it. Any attempt to defeat the time-control disabling function in the Software is a material breach of this Agreement and a violation of intellectual property law.
(b) A perpetual license does not expire, and may only be terminated by Brightday if you violate the terms of this Agreement. Upgrades to newer versions are not included. Each perpetual license may be installed on one computer. If that computer is used exclusively by one person and not shared with others, then that person may also install the Software on a second computer, also used exclusively by him or her.
(c) A personal subscription lasts for the period of time for which you subscribed as indicated on your invoice for the Software, but may be earlier terminated by Brightday if you violate the terms of this Agreement. A personal subscription may be installed and activated twice, on
computers used solely by the subscriber. Upgrades to newer versions during the term of the license are included. You acknowledge that (i) your right to install and use the Software is limited to the term of your subscription, (ii) the Software is designed to cease to function upon expiration of the term of your subscription if the subscription is not renewed, and (iii) you may generally renew your subscription, but the terms upon which the Software may be licensed upon a renewal are subject to change by Brightday at its sole discretion. Any attempt to defeat the time-control disabling function in the Software is a material breach of this Agreement and a violation of intellectual property law.
(d) A group subscription license lasts for the period of time for which you subscribed as indicated on your invoice for the Software, but may be earlier terminated by Brightday if you violate the terms of this Agreement. Your subscription is to activate the software on an authorized number of computers. Where applicable, upgrades to newer versions during the term of the subscription are included. You acknowledge that (i) your right to install and use the Software is limited to the term of your subscription, (ii) the Software is designed to cease to function upon expiration of the term of your subscription if the subscription is not renewed, and (iii) you may generally renew your subscription, but the terms upon which the Software may be licensed upon a renewal are subject to change by Brightday at its sole discretion. Any attempt to defeat the time-control disabling function in the Software is a material breach of this Agreement and a violation of intellectual property law.
USE OF PRIOR VERSIONS IF YOU UPGRADED. If you purchased your license as an upgrade from a prior version, you may not transfer your license for the prior version to another computer or to anyone else.
INSTALLATION AND USAGE. You may install and use the Software on up to the Authorized Number of Computers. THIS IS NOT A CONCURRENT USER LICENSE. The Authorized Number of Computers includes each Computer that at any time is or has been given access to the Software, regardless of whether such Computer is running the Software at a particular point in time.
AUDITS. To ensure compliance with this Agreement, you agree that upon reasonable notice, Brightday or Brightday’s authorized representative shall have the right to inspect and audit your use of the Software. Any such inspection or audit shall be conducted during regular business hours at your facilities or electronically, either by Brightday or by representatives authorized by Brightday for this purpose. If such inspections or audits disclose that you have installed or permitted access to the Software in a manner that is not permitted under this Agreement, then (i) you are liable to pay for any unpaid license fees and the reasonable costs of the audit; and (ii) the license grant with respect to the Software will terminate immediately. Any information obtained by Brightday or Brightday’s authorized representative during the course of such inspection and audit will be used and disclosed by Brightday solely for purposes of such inspection and audit and for enforcement of Brightday’s rights under this Agreement and applicable law, unless other uses or disclosures are required under applicable law. Nothing in this Section shall be deemed to limit any legal or equitable remedies available to Brightday for violation of this Agreement or applicable law.
MANDATORY ACTIVATION AND LICENSE CONFIRMATION. Activation associates the use of the software with a specific computer. You must activate the Software before using it the first time. Brightday will confirm the activation each time you launch it. During activation (and activation confirmation), the software will send information about the software and the device to Brightday. This information includes the version, the serial number, the Internet protocol address of the device, and information derived from the hardware configuration of the device. BY USING THE SOFTWARE, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION. UNLESS THE SOFTWARE IS ACTIVATED, YOU HAVE NO RIGHT TO USE THE SOFTWARE. This is to prevent its unlicensed use. YOU ARE NOT PERMITTED TO BYPASS OR CIRCUMVENT ACTIVATION. You must activate every computer from which the Software is used.
GENERAL RESTRICTIONS. You agree and acknowledge that, unless enforcement is prohibited by applicable law (and then only to the extent prohibited by applicable law), the following actions are expressly prohibited:
ALL RIGHTS RESERVED. Title to and ownership of the Software, the User Documentation and all related intellectual property are retained by Brightday. The Software is confidential and the Software and the User Documentation are copyrighted. The Software and the User Documentation are licensed to you, not sold. All rights of every kind that are not expressly granted to you in this Agreement are entirely and exclusively reserved to Brightday.
LIMITED WARRANTY. Brightday warrants that, as of the date on which the Software is delivered to you and for thirty (30) days thereafter or for the purchased subscription period (where applicable), the Software will provide the features and functions generally described in the User Documentation and that the media on which the Software is furnished, if any, will be free from defects in materials and workmanship under normal use. Except for the foregoing, the Software and the User Documentation are provided “AS IS.” All warranty claims must be made during such thirty (30) day period or purchased subscription period. Brightday’s entire liability and your exclusive remedy will be, at Brightday’s option, to attempt to correct or work around errors, to replace the defective media on which the Software is furnished, if any, or to refund the license fees, if any, paid by you and terminate this Agreement.
DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFIED IN THIS AGREEMENT, BRIGHTDAY MAKES, AND YOU RECEIVE, NO WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE SOFTWARE AND THE USER DOCUMENTATION. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SOFTWARE AND ITS FUNCTIONALITY IN THE USER DOCUMENTATION OR ANY COMMUNICATION WITH YOU CONSTITUTE TECHNICAL INFORMATION AND NOT AN EXPRESS WARRANTY OR GUARANTEE. IN ADDITION, BRIGHTDAY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, BRIGHTDAY DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE FOREGOING MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC RIGHTS. OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION, MAY APPLY TO YOU.
LIMITATION OF LIABILITY. IN NO EVENT SHALL BRIGHTDAY HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES; LOSS OF PROFITS, REVENUE, OR DATA; BUSINESS INTERRUPTION, OR COST OF COVER. IN ADDITION, IN NO EVENT SHALL THE LIABILITY OF BRIGHTDAY FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, USER DOCUMENTATION, OR THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY YOU FOR THE SOFTWARE. THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM
CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EVEN IF BRIGHTDAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE.
EXPORT REGULATIONS. All Software and User Documentation delivered under this Agreement are subject to United State export control laws and may be subject to export or import laws and regulations of other countries. You agree not to export the Software or the User Documentation in violation of United States or other applicable export control laws.
U.S. GOVERNMENT RESTRICTED RIGHTS. If the Software is being acquired by or on behalf of the United States government or a United States government prime contractor or subcontractor, the Software and the User Documentation are provided with the same commercial license rights as are described elsewhere in this Agreement.
GOVERNING LAW. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, U.S.A. without giving effect to the conflict of laws principles thereof, excluding the UN Convention on Contracts for the International Sale of Goods.
ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of you and Brightday relating the subject matter hereof and supersedes any and all other previous or contemporaneous communications, agreements, representations, warranties or advertising with respect to the Software and User Documentation.
SEVERABILITY. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such provision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest extent consistent with law.
NO WAIVER. No term or provision hereof will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against whom the waiver is asserted. No waiver (whether express or implied) will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach.
LANGUAGE. The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations.
Document Version: 20181019