HomeMy WebLinkAboutCAG2023-509 - Supplement - BrightSign, LLC - Content Cloud Renewal of 11 Licenses - 9/30/24 FOR CITY OF KENT OFFICIAL USE ONLY
Sup/Mgr:
Agreement Routing Form Dir Asst:
• For Approvals,Signatures and Records Management Dir/Dep:
KE N T This form combines&replaces the Request for Mayor's Signature and Contract Cover (Optional)
WASHINGTON Sheet forms.
Originator: Department:
Ikhra Mohamed IT
Date Sent: Date Required:
0 06/27/2024 07/05/2024
CL Director or Designee to Sign. Date of Council Approval:
Q N/A
Budget Account Number: Grant?:Yes ZNo
52001770.64260.1800
Budget?:Yes[z]No Type: N/A
Vendor Name: Category:
BrightSign LLC License
Vendor Number: Sub-Category:
= N/A - Pcard Extension
0
-110 Project Name: Content Cloud Subscription Renewal
E
C Project Details:Renewal of BrightSign Content Cloud subscription licenses (11), at a cost of
_ $1,200.08, including any applicable Washington State Sales Tax, under Director's
signature authority. Purchase to be processed by Pcard.
C
Agreement Amount: $1 200.08 Basis for Selection of Contractor: Direct Negotiation
*Memo to Mayor must be attached
Start Date: 09/30/2024 Termination Date: 09/29/2025
Im
Q Local Business?F--]YesFv(-]No* If meets requirements per KCC3.70.100,please complete"Vendor Purchase-Local Exceptions'form on Cityspace.
Business License Verification:Yes:ln-Process:Exempt(KCC 5.01.045)
Notice required prior to disclosure? Contract Number:
F]Yes7No CAG2023-509
Comments:
a1
3
3 0 Mike Carrington, IT Director
N 'A�> 3 Date: 06/27/24
c
in
Date Routed to the City Clerk's Office: Interlocal Agreement has been uploaded to website:
,c«w»373__,0 Visit Documents.KentWA.gov to obtain copies of all agreements
rev.20210513
BrightSign LLC Proforma Invoice
�' I ' PO Box 320250
Los Gatos CA 95032 Date 6/24/2024
Quote No. 21209
EXW EXW
Bill To Ship To NOTE:
Ikhra Mohamed QUOTE NUMBER MUST BE REFERENCED CLEARLY
City of Kent on Purchase Orders and communications with
220 Fourth Avenue South Orders@brightsign.biz in order to obtain this pricing
Kent WA 98032
Expires Exp.Close Sales Rep Partner Shipping Method
7/24/2024 6/24/2024 Justin Rogina FedEx Ground@
Quantity Item Tax Rate Amount
11 BSNCSUB-12-SB lrs $99.000SD $1,089.000SD
BSN.cloud - 1 year Content Cloud subscription (auto
renewal)
Network:City_of_Kent
Admin Email: KentBrightSigns@kentwa.gov
Dates:9/30/2024 to 9/30/2025
Subtotal $1,089.000SD
sales/use tax 10.2% $111.08USD
Total $1,200.08USD
Wire Transfer Information Payment Information
BrightSign, LLC Wire Transfer Information:
PO Box 320250 Bank of America
Los Gatos, CA 95032 1695 Saratoga Ave, San Jose, CA
Account#0008007-70672 Account#0008007-70672
ABA/Routing#026009593 (domestic)
Bank:Bank of America SWIFT#BOFAUS3N (international)
1695 Saratoga Ave, San Jose, CA
ABA/Routing#026009593 (domestic) Payment by Check: (Please make every effort to pay via wire or
SWIFT#BOFAUS3N (international) ACH instead of check)
BrightSign LLC
P.O. Box 741714
Los Angeles, CA 90074-1714
Overnight Mail Checks Only:
Lockbox 741714
2706 Media Center Drive
Los Angeles, CA 90065-1733
A finance charge of 1.5% per month will accrue on unpaid
balances from the due date
Items and services sold by BrightSign LLC are subject to sales tax in select states in accordance with the applicable laws of that state.
Your order may be subject to state and local sales or use tax even if said tax is not required to be collected by BrightSign LLC. Refer to
II IIIIIIIIIII111111111 1 of
21209
http://www.brightsign.biz/about/sales-tax/for additional information. In the event that your account does not have approved terms or
available credit, you must pre-pay for the above items in full prior to shipment.
Items shipped from BrightSign LLC's Santa Clara warehouse and/or to a U.S.address, regardless of warehouse origin, may be subject
to a tariff surcharge.Please refer to the last page in this quote for further details.
II IIIIIIIIIII111111111 2of2
21209
SN .CLOUD
TE MS OF
SE VICE
Updated March 17, 2020
BSN ,,Cloud Terms of
Service
THESE BSN.CLOUD TERMS OF SERVICE (these "TERMS") GOVERN YOUR AND YOUR
USERS' ACCESS TO AND USE OF THE ONLINE CONTENT, DISTRIBUTION,AND
DEVICE MANAGEMENT SERVICES (THE "SERVICES") OFFERED BY BRIGHTSIGN
LLC ("BRIGHTSIGN", "WE", "OUR" OR"US"). BY PLACING AN ORDER, CLICKING TO
ACCEPT THESE TERMS, OR USING OR ACCESSING THE SERVICES OR RELATED
SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU ARE USING THE
SERVICES ON BEHALF OF A COMPANY OR OTHER ENTITY, THEN "CUSTOMER" OR
"YOU"MEANS THAT ENTITY,AND YOU ARE BINDING THAT ENTITY TO THESE
TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL POWER
AND AUTHORITY TO ENTER INTO THESE TERMS AND THAT, IF CUSTOMER IS AN
ENTITY, THESE TERMS AND EACH ORDER FORM IS ENTERED INTO BY AN
EMPLOYEE OR AGENT WITH ALL NECESSARY AUTHORITY TO BIND THAT ENTITY
TO THESE TERMS. THESE TERMS INCLUDE ANY ORDER FORMS AS WELL AS ANY
POLICIES OR EXHIBITS LINKED TO OR REFERENCED IN THESE TERMS.
IF YOU REGISTER FOR A FREE TRIAL OF OUR SERVICES, THE APPLICABLE
PROVISIONS OF THESE TERMS WILL GOVERN THAT FREE TRIAL.
The Services are not intended for children under the age of 13. If you are between the ages of 13
and 18 (or between 13 and the age of legal majority in your jurisdiction of residence),you may
only use the Services with the consent of your parent or legal guardian who agrees to be bound
by these Terms.
We may modify these Terms at any time and in our sole discretion. Changes to these Terms will
not apply retroactively and will become effective fourteen days after they are posted or fourteen
days after the date of our e-mail notice to you (if provided). The date of the latest revision will be
noted at the top of this page. Your use of the Services after the date changes become effective
constitutes your acceptance of the modified Terms.
THESE TERMS CONTAIN AN ARBITRATION AGREEMENT, WHICH WILL, WITH
LIMITED EXCEPTION,REQUIRE YOU TO SUBMIT CLAIMS YOUHAVE AGAINST US
TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRA TION A GREEMENT,
(1) YOU WILL ONLYBE PERMITTED TO PURSUE CLAIMS AGAINST BRIGHTSIGN
ON ANINDIVIDUAL BASIS,NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY
CLASS OR REPRESENTATIVE ACTION OR PROCEEDING,AND (2) YOU WILL ONLY
BE PERMITTED TO SEEK RELIEF(INCLUDING MONETARY,INJUNCTIVE,AND
DECLARATORYRELIEF) ONANINDIVIDUAL BASIS.
1. SERVICES
1.1 Provision of Access. Subject to your compliance with these Terms and payment of applicable
fees, BrightSign will use commercially reasonable efforts to provide the Services to you, and
grants you a limited, non-exclusive, non-transferable, revocable right to access and use the
Services with one or more of our Devices, during your applicable subscription term, solely for
your internal business purposes.
1.2 Use by Others. You may permit your Users to use the Services, provided their use is for your
benefit only and in compliance with these Terms. You will be responsible and liable for all
Users' use of the Services and ensuring your Users' compliance with these Terms.
1.3 Subscriptions and Automatic Renewals. For Services that are sold as subscriptions, the term
of such subscriptions ("Term")will be as indicated in the Order Form and will commence on the
date of purchase (and not on the date of first use). Unless otherwise provided in an Order Form,
the subscription will automatically renew at the end of the applicable Term("Renewal Term"),
and we will automatically charge your credit card on file or bill you if you have pre-approved
terms with available credit with us for Renewal Term unless you timely cancel your subscription.
BrightSign will notify you at the email address we have on file in advance of your Renewal
Term, and provide you with an option to cancel your subscription.
1.4 Support. Support is available to current subscribers via email at support@brightsign.biz.
Customers may also purchase additional support options as described
at http://support.bri hg tsign.biz.
1.5 Modifications. BrightSign reserves the right to make unscheduled updates or enhancements
to the Services, and to modify or discontinue, temporarily or permanently, any part of the
Services at any time and without notice. BrightSign will use commercially reasonable efforts to
notify you of the changes but is under no obligation to do so. You agree that BrightSign will not
be liable to you or any other party for any modification, suspension or deprecation of any
material feature or functionality.
1.6 Data Usage Limitations.Services may be subject to usage limits specified in your Order Form
or Documentation. If you exceede your contractual usage limit, you will be responsible for the
overage charges and BrightSign will invoice you for such charges, in accordance with the "Fees
and Payment Terms" section below. You will also be solely responsible for any charges you
incur under a third-parry provider data plan.
2. CUSTOMER RESPONSIBILITIES AND RESTRICTIONS
2.1 Customer Responsibilities. Customer will (a)be responsible for the Users' compliance with
these Terms, the Documentation and the applicable Order Forms, (b) be responsible for the
accuracy, quality, and legality of Customer Data, the means by which Customer acquired
Customer Data, Customer's use of Customer Data with the Services, and the interoperability of
any Third-Party Applications with the Services, (c)use commercially reasonable efforts to
prevent unauthorized access to or use of the Services, and notify BrightSign promptly of any
such unauthorized access or use, (d)use the Services only in accordance with these Terms, the
Documentation, the Acceptable Use Policy, the applicable Order Forms, and applicable laws and
government regulations, and(e) comply with terms of service of any Third-Party Applications.
Any use of the Services in breach of the foregoing that in BrightSign's judgment threatens the
security, integrity, or availability of the Services, may result in immediate suspension of
Customer's subscription or other access to or use of the Services.
2.2 Usage Restrictions. Customer will not(a)make the Services available to anyone other than
its Users, or use the Services for the benefit of anyone other than its Users, unless expressly
stated in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute,
make available, rent or lease any part of the Services, or include any part of the Services in a
service bureau or outsourcing offering, (c)use the Services or any Third-Party Application to
store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or
transmit material in violation of third-party rights, (d)use the Services or any Third-Party
Application to store or transmit malicious or harmful code, (e) interfere with or disrupt the
integrity or performance of the Services or data contained therein, (f) attempt to gain
unauthorized access to the Services or its related systems or networks, (g)permit direct or
indirect access to or use of the Services in a way that circumvents a contractual usage limit, or
use the Services to access or use any BrightSign intellectual property except as permitted under
these Terms, an Order Form, or the Documentation, (h)modify, copy, or create derivative works
based on the Services or any part, feature, function or user interface thereof, (i) frame or mirror
any part of any the Services, other than framing on Customer's own intranets or otherwise for its
own internal business purposes or as permitted in the Documentation, 0) disassemble, reverse
engineer, or decompile the Services. You also may not access the Services to (1) evaluate or
monitor its functionality or for other benchmarking purposes; (2) copy any ideas, features,
functions, or graphics of the Services in an attempt to build a competitive product or service, or
(3) determine whether the Services are within the scope of any patent.
3. SUSPENSION OF SERVICES
BrightSign may suspend and deactivate immediately and without notice your use of and access
to the Services in the event of a breach or threatened breach of the security or integrity of the
Services or a violation or threatened violation of any restrictions or conditions in these Terms, or
for other emergency or legal reasons. BrightSign reserves the right to audit your account and
usage of the Services to confirm that your usage is in accordance with the Documentation and
these Terms and any applicable Order Forms. We may also disclose any part of your Customer
Data or electronic communication to comply with the law or a government request, or as
necessary to protect the rights or property of BrightSign or a third parry. BrightSign may also
suspend your access to the Services in the event your payment is overdue. BrightSign shall not
be liable to you, your Users, or any other third party for any suspension under this Section.
BrightSign also reserves the right to delete any and all Customer Data from its servers in its
reasonable discretion in the event of a suspension under this Section and disable your access to
Third-Party Applications. For the avoidance of doubt,you will remain responsible for
payment of applicable fees during any suspension period under this Section.
4. PROPRIETARY RIGHT
4.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, BrightSign
and its licensors reserve all of their right, title, and interest in and to the Services, the Devices,
the Documentation, the System Data, BrightSign Confidential Information, and all related
intellectual property rights, including any modifications and derivative works thereof. No rights
are granted to you in these Terms other than as expressly set forth herein.
4.2 Feedback. You may from time to time provide to BrightSign suggestions, comments,
corrections, or recommendations for enhancements or improvements, new features or
functionality or other feedback("Feedback") with respect to the Services, the Devices, 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 of any kind.
4.3 Trademarks. The BrightSign name, brands, and logos are trademarks and service marks of
BrightSign(collectively, the `BrightSign Trademarks"), and may be used by you only upon prior
written authorization by BrightSign and in accordance with BrightSign style guide available
at BrightSign's website.
4.4 Publicity. You will not issue a press release or other public statement relating to your
relationship with BrightSign or these Terms unless pre-approved in writing by BrightSign
authorized representative. BrightSign may identify you as a customer by using your name,
trademark and/or logo in its marketing collateral, presentations and websites, in accordance with
your branding guidelines provided in writing to BrightSign.
5. CUSTOMER DATA
5.1 Rights in Customer Data. As between the parties,you retain all right, title, and interest
in and to Customer Data (excluding any BrightSign intellectual property or BrightSign
Confidential Information contained therein), and are solely responsible for Customer Data,
including backing up and storing Customer Data.You hereby grant BrightSign a non-exclusive,
worldwide, royalty-free right and license to collect,use, copy, store, transmit, modify, and create
derivative works of Customer Data solely to the extent necessary to provide the Services.
5.2 Representation and Warranty. You hereby represent and warrant that (i)you hold all and
exclusive right, title, and interest in and to Customer Data shared by you on or through the
Services or that you have secured all necessary licenses or clearances for the use of Customer
Data(including without limitation all rights to use, reproduce, distribute, perform, and display
Customer Data and to create derivative works of Customer Data) in connection with the
Services; and(ii) the use, transmission, and display of Customer Data does not and will not
infringe the copyright, patent, trademark, trade secret or other intellectual property right of any
third party, or constitute defamation, invasion of privacy, or the violation of any right of
publicity, confidentiality, or any other right of any third party.
5.3 Services Data. Notwithstanding anything to the contrary, BrightSign shall have the right to
collect, analyze and aggregate data and other information relating to the provision,use and
performance of the Services and shall be free (during and after the Term of your
subscription/Order Form(s)) to (a)use such data and other information to develop and improve
the Services and other BrightSign offerings, and(b) disclose such data and other information
solely in an aggregated and anonymized format.
5.4 Removal. BrightSign reserves the right to remove any Customer Data (including Personal
Data—see Section 6) from its servers at any time, for any reason or for no reason at all, though
BrightSign will make commercially reasonable efforts to alert you of such removal as soon as
practicable. BrightSign may,but is not obligated to, monitor Customer Data and remove any
content or prohibit use of the Services if BrightSign believes in its sole discretion the content or
use may be (or is alleged to be) in violation of these Terms or any applicable laws or may impact
the Services. BrightSign does not assume liability for Customer Data. It is your responsibility to
maintain on-going back-ups of Customer Data, and BrightSign shall have no responsibility to
back up your data or any liability to you, your Users, or any other party for failing to back-up
your data or for any deletion of your data.
6. PERSONAL DATA
You agree that you will not use the Services to transmit any personally identifiable information,
personal data, financial, medical, or other protected information (collectively, "Personal Data").
You further agree that if you share or disclose Personal Data through the Services, you will do so
solely at your own risk and you represent and warrant that you will (i) comply with all applicable
laws relating to the collection, use and disclosure of Personal Data; (ii)maintain and abide by a
publicly-accessible and available privacy policy, which clearly and conspicuously discloses that:
(a)use third-party providers to provide services such as the Services to your end users; and (b)
you may disclose such Personal Data to providers like BrightSign; (iii)you have made all
required notifications and obtained all required consents and authorizations from your end users
relating to the disclosure of end user Personal Data; and(iv) you are responsible for assessing
whether the Services are appropriate for your use with respect to your obligations under any
applicable laws or regulations, including the EU Data Privacy Laws.You understand that while
BrightSign reserves the right to monitor the Services, the Services are not designed to notify
BrightSign of violations of this provision, and BrightSign shall not be responsible in any way for
your violations of this Section. 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 use or disclosure of
Personal Data through the Services. You will indemnify, defend, and hold harmless BrightSign
and its suppliers, Authorized Resellers, Affiliates, officers, directors, employees, stockholders,
and agents from and against all claims, damages, and costs (including reasonable attorneys' fees)
relating to or arising out of your collection,processing, transmission, or otherwise making
available Personal Data to or through the Services.
7. FEES AND PAYMENT TERMS; TAXES
7.1 Fees. You will pay all fees specified in the applicable Order Form. Except as otherwise
specified in these Terms or in your Order Form, the fees are (i)based on the subscription
purchased and not actual usage and(ii)payable in U.S. dollars, are non-cancelable and non-
refundable, and no credit will be issued.
7.2 Invoicing and Payment. You will provide BrightSign or its Authorized Reseller, as
applicable, with a valid and updated credit card information, or with a valid purchase order or
alternative document acceptable to BrightSign or the Authorized Reseller. If you provide credit
card information to BrightSign or Authorized Reseller, you authorize BrightSign or Authorized
Reseller to charge such credit card for the purchased services listed in the Order Form for the
Initial Term and any Renewal Term(s). Such charges will be made in advance of each
subscription cycle. If the Order Form specifies that payment will be by a method other than a
credit card, BrightSign (or Authorized Reseller, if applicable)will invoice you in advance and
otherwise in accordance with the Order Form. Unless otherwise stated in the Order Form,
invoiced fees are due in full net 30 days from the invoice date. Customer is responsible for
providing complete and accurate billing and contact information to BrightSign and notifying
BrightSign of any changes to such information.
7.3 Overdue Charges. If any invoiced amount is not received by BrightSign by the due date, then
without limiting BrightSign's other rights and remedies, (a) those charges may accrue late
interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted
by law, whichever is lower and(b) BrightSign may condition future subscription renewals and
Order Forms on payment terms shorter than those specified in the "Invoicing and Payment"
section above.
7.4 Payment Disputes. You must initiate any payment disputes within 30 days of the date of the
invoice by contacting BrightSign at financegBrightSign.biz. Upon expiration of such 30-day
period,you will not be entitled to dispute any fees paid or payable to BrightSign. The Parties will
work together in good faith to resolve billing disputes. A pending billing dispute shall not
exempt you from timely paying any undisputed amounts owed. BrightSign will not exercise its
rights under the "Overdue Charges" or"Suspension of Service and Acceleration" sections if you
is disputing the applicable charges reasonably and in good faith and are cooperating diligently to
resolve the dispute. Any disputes that cannot be resolved in accordance with the foregoing shall
be handled in accordance with Section 7.5 below.
7.5 Suspension for Nonpayment and Acceleration. If any charge owing by you under this or any
other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case
of amounts Customer has authorized BrightSign to charge to Customer's credit card), BrightSign
may, without limiting its other rights and remedies, accelerate your unpaid fee obligations under
such agreements so that all such obligations become immediately due and payable, and suspend
the Services until such amounts are paid in full, provided that BrightSign will give Customer at
least 10 days' prior notice that its account is overdue before suspending services to Customer.
BrightSign also reserves the right to remove and delete all Customer Data from its servers in the
event of a suspension under this Section.
7.6 Taxes. BrightSign's fees do not include taxes, levies, duties, or similar governmental
assessments, including, for example, value-added, sales, use or withholding taxes (collectively,
"Taxes"). You are responsible for paying all Taxes associated with your purchases. If we have
the legal obligation to pay or collect Taxes for which you are responsible under this section, we
will invoice you and you will pay that amount unless you provide us with a valid tax exemption
certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible
for taxes assessable against it based on its income,property and employees.
8. FREE TRIALS
If you register for a free trial of the Services, BrightSign will make the Services available to you
on a trial basis free of charge until the earlier of(a)the end of the free trial period for which you
registered to use the applicable Services, or(b)the start date of any paid subscriptions ordered by
Customer for such Services, or(c)termination by BrightSign in its sole discretion. Additional
trial terms and conditions may apply if posted at trial registration web page. Any such additional
terms and conditions are incorporated into these Terms by reference and are legally binding.
ANY DATA OR CONTENT YOU UPLOAD INTO THE SERVICES,AND ANY
CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE
TRIAL WILL OR MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A
SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL,
PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA,
BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA
ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE
THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL.
THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE
FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT CUSTOMER DATA
BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE
PERMANENTLY LOST. DURING THE FREE TRIAL, THE SERVICES ARE PROVIDED
"AS-IS"WITHOUT ANY WARRANTY AND BRIGHTSIGN SHALL HAVE NO
INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT
TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF
LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE
BRIGHTSIGN'S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING
THE FREE TRIAL SHALL NOT EXCEED $500.00. WITHOUT LIMITING THE
FOREGOING, BRIGHTSIGN AND ITS AFFILIATES AND ITS LICENSORS DO NOT
REPRESENT OR WARRANT TO CUSTOMER THAT: (A)YOUR USE OF THE SERVICES
DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER'S REQUIREMENTS, (B)
YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE
UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C)USAGE DATA
PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE "LIMITATION OF
LIABILITY" SECTION BELOW, YOU SHALL BE FULLY LIABLE UNDER THESE
TERMS TO BRIGHTSIGN AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT
OF YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH
BY YOU OF THESE TERMS AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS
UNDER THESE TERMS. YOU SHALL REVIEW THE APPLICABLE SERVICES
DOCUMENTATION DURING THE FREE TRIAL PERIOD TO BECOME FAMILIAR WITH
THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A
PURCHASE.
If you sign up for a free trial of the Services, we may require you to provide a valid credit card or
other payment method, and, unless timely canceled,you will be enrolled into a paid subscription
to the Services upon expiration of your free trial period.
9. BETA SERVICES
From time to time, BrightSign may offer you an opportunity to test or evaluate free versions of
its software or services that may be in development("Beta Services"). You may choose to try
such Beta Services in your sole discretion. Beta Services are intended for internal evaluation
purposes only and not for production or commercial use, are not supported, and may be subject
to additional terms. Beta Services are not considered"Services"under these Terms, however, all
restrictions and obligations contained in these Terms shall apply equally to your use of Beta
Services. BrightSign may discontinue Beta Services at any time in its sole discretion and may
never make them generally available. BrightSign will have no liability for any harm or damage
arising out of or in connection with your use of Beta Services. You acknowledge and expressly
agree that such Beta Services will be provided to you"AS IS", with NO WARRANTY OR
SUPPORT of any kind.
10. THIRD-PARTY APPLICATIONS
The Services are or may be integrated with Third-Party Applications. These Third-Party
Applications may have their own terms and conditions of use and privacy policies and your use
of these Third-Party Applications will be governed by and subject to such terms and conditions
and privacy policies. You understand and agree that BrightSign does not endorse and is not
responsible or liable for the behavior, features, or content of any Third-Party Application or for
any transaction you may enter into with the provider of any such Third-Party Applications, nor
does BrightSign warrant the compatibility or continuing compatibility of the Third-Party
Applications with the Services.
11. PRIVACY AND ELECTRONIC COMMUNICATIONS
By using the Services, you consent to receiving periodic electronic communications from us
relating to our products and services. Please review our Privacy Policy to understand our
practices regarding the collection and use of personal data you provide to us. The Privacy Policy
is expressly incorporated into these Terms.
12. CONFIDENTIALITY
Each parry(the "Receiving Parry")understands and agrees that the other party(the "Disclosing
Party") has disclosed or may disclose business, technical or financial information relating to the
Disclosing Party's business (hereinafter referred to as "Confidential Information" of the
Disclosing Party). Confidential Information includes, without limitation, non-public information
regarding features, functionality and performance of the Services and the Devices, and business
and marketing plans, technology and technical information,product plans and designs, and
business processes disclosed by the Disclosing Party. The Receiving Party agrees to: (i) take
appropriate, commercially reasonable measures to protect such Confidential Information; (ii)use
Confidential Information only in connection with these Terms or otherwise for the purpose for
which it was disclosed; and(iii) not use or disclose such Confidential Information to any third
party without prior express written approval of the Disclosing Party. The Disclosing Party agrees
that the foregoing shall not apply with respect to any information that the Receiving Party can
document(a) is or becomes generally available to the public, (b)was in its possession or known
by it prior to the disclosure by the Disclosing Party, (c) was rightfully disclosed to it without
restriction by a third party, (d)was independently developed without use of any Confidential
Information of the Disclosing Party. If any Confidential Information is required to be disclosed
by law, it may be disclosed to the extent of the requirement, subject to prior notification to the
Disclosing Party. These obligations of confidentiality will continue for a period of five (5)years
from the date of the disclosure of Confidential Information, except that confidentiality obligation
with respect to information that is a trade secret will continue for as long as information remains
a trade secret under applicable law. The Receiving Party acknowledges that an unauthorized
disclosure of Confidential Information will cause irreparable harm to the Disclosing Party for
which damages alone will not be a sufficient remedy. Accordingly, the Receiving Party agrees
that, in addition to all other remedies available to the Disclosing Party in an action at law, in the
event of any breach or threatened breach by the Receiving Party of the terms of these
Confidentiality obligations, the Disclosing Party will,without the necessity of proving actual
damages or posting any bond or other security, be entitled to temporary or permanent injunctive
relief.
13. DISCLAIMER OF WARRANTIES
THE SERVICES AND ANY ASSOCIATED SOFTWARE OR FIRMWARE ARE PROVIDED
ON AN"AS IS"AND "AS AVAILABLE"BASIS. BRIGHTSIGN DOES NOT WARRANT
THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT
MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM
YOUR USE OF THE SERVICES, OR THAT THE SERVICES, SOFTWARE OR FIRMWARE
WILL BE EFFECTIVE, ACCURATE, OR RELIABLE. EXCEPT AS SET FORTH
EXPRESSLY HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
BRIGHTSIGN EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT.
A limited hardware warranty is offered for BrightSign Devices.
14. LIMITATION OF LIABILITY
14.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF
BRIGHTSIGN TOGETHER WITH ANY OF ITS AFFILIATES ARISING OUT OF OR
RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER
UNDER THESE TERMS FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE
SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY
AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN
CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL
NOT LIMIT YOUR OR YOUR AFFILIATES' PAYMENT OBLIGATIONS UNDER THESE
TERMS.
14.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL BRIGHTSIGN
OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO
THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR
PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND
REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF BRIGHTSIGN OR ITS
AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF
BRIGHTSIGN'S OR ITS AFFILIATES' REMEDY OTHERWISE FAILS OF ITS ESSENTIAL
PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT
PROHIBITED BY LAW.
IF YOU ARE FROM NEW JERSEY, THE FOREGOING TERMS IN THE SECTIONS
TITLED "DISCLAIMER OF WARRANTIES"AND "LIMITATIONS OF LIABILITY"ARE
INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE
STATE OF NEW JERSEY. IF ANY PORTION OF SUCH SECTIONS IS HELD TO BE
INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF
SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING
PORTIONS OF SUCH SECTIONS.
15. INDEMNIFICATION
You will defend, indemnify, and hold harmless BrightSign and its Affiliates, suppliers and
Authorized Resellers, and their respective employees, officers, directors, stockholders and agents
(each of the foregoing, an"Indemnified Parry") against any actual or threatened claim, loss,
liability, proceeding, governmental investigation or enforcement action arising out of or relating
to your activities under these Terms, your use or misuse of the Services or the Devices, and any
claims related to Customer Data(a "Claim"). Each Indemnified Party reserves the right, at your
expense, to retain separate counsel for themselves in connection with any Claim or, if you have
not responded reasonably to the applicable Claim, to assume the exclusive defense and control of
any Claim in which you are a named parry and that is otherwise subject to indemnification under
this Section. You will pay all costs, reasonable attorneys' fees and any settlement amounts or
damages awarded against an Indemnified Party in connection with any Claim. You will also be
liable to the applicable Indemnified Parties for any costs and attorneys' fees they incur to
successfully establish or enforce their right to indemnification under this Section.
16. INTERNATIONAL USE
The Services are controlled, operated, and administered by BrightSign from its principal offices
located in the U.S.A. BrightSign makes no representation that the Services are appropriate or
available for use at locations outside the U.S.A. If you access the Services from a location
outside of the U.S.A., you are responsible for compliance with all local laws or regulations
where you reside.
17. TERM AND TERMINATION
17.1 Term. The term of this agreement commences on the date you first accept these Terms and
continues until all subscriptions have expired or these Terms have been terminated. For regular
subscriptions, a Renewal Term will begin automatically unless either party provides notice of
termination at least thirty (30) days prior to the commencement of the next Renewal Term.
17.2 Termination for Cause. Either party may terminate this agreement upon 30 days written
notice to the other party of a material breach if such breach remains uncured at the expiration of
such period. BrightSign may also terminate this agreement upon 10 days written notice for your
payment default if the default remains uncured after the 10-day notice period.
17.3 Effect of Expiration or Termination and Survival. Upon termination or expiration of these
Terms and corresponding Order Forms, all rights and obligations will immediately terminate
except that any terms or conditions that by their nature should survive such expiration or
termination will survive, including any outstanding payments still owed by you as of the date of
expiration or termination, all conditions and restrictions on use of the Services, the terms and
conditions relating to proprietary rights and confidentiality, disclaimers, indemnification,
limitations of liability and termination and the general provisions below. We may also delete any
and all Customer Data from our servers upon expiration or termination of your subscription
and/or these Terms.
18. Export. You may not remove or export from the United States or allow the export or re-
export of the Services, Devices, Documentation, and anything related thereto, or any direct
product thereof, in violation of any restrictions, laws or regulations of the United States
Department of Commerce, the United States Department of Treasury Office of Foreign Assets
Control, or any other United States or foreign agency or authority. You will comply with all
applicable import, re-import, export, and re-export control laws and regulations, including the
Export Administration Regulations, the International Traffic in Arms Regulations, and country-
specific economic sanctions programs implemented by the Office of Foreign Assets Control.
You are solely responsible for compliance related to the manner in which you use the Services,
Devices, Documentation, and any related BrightSign products or services, including without
limitation your distribution of the Services or the Devices.
19. Governing Law and Jurisdiction. These Terms shall be governed by the substantive laws of
the State of California without regard to its conflict of laws provisions. The application of the
United Nations Convention on Contracts for the International Sale of Goods is expressly
excluded. In the event of any litigation arising out of or relating to these Terms, the parties agree
to submit to the exclusive personal jurisdiction of the federal and state courts located in the
County of Santa Clara, California for any actions for which the parties retain the right to seek
relief in a court of competent jurisdiction to prevent the actual or threatened infringement,
misappropriation or violation of the parties' intellectual property rights, as set forth in the
Arbitration Agreement below.
20. BINDING ARBITRATION AND CLASS ACTION WAIVER
20.1 Agreement to Arbitrate. This Section 20 is referred to in these Terms as the "Arbitration
Agreement."You agree that any and all disputes or claims that have arisen or may arise between
you and BrightSign, whether arising out of or relating to these Terms, the Services, any aspect of
the relationship or transactions between us, shall be resolved exclusively through final and
binding arbitration, rather than a court, in accordance with the terms of this Arbitration
Agreement. This Arbitration Agreement does not preclude either party from bringing issues to
the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek
relief against us on your behalf. Further, notwithstanding this Agreement to Arbitrate, you or us
may bring enforcement actions, validity determinations or claims arising from or relating to
theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction
or in the U.S. Patent and Trademark Office to protect intellectual property rights ("intellectual
property rights"means patents, copyrights, moral rights, trademarks, and trade secrets,but not
privacy or publicity rights). Either party may also seek relief in a small claims court for disputes
or claims within the scope of that court's jurisdiction to the extent such claims do not seek
equitable relief.
20.2 Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration
Association's ("AAA") rules and procedures, as modified by this Arbitration Agreement. For
information on the AAA, please visit its website, http://www.adr.org. If there is any
inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement,
the applicable terms of this Arbitration Agreement will control unless the arbitrator determines
that the application of the inconsistent Arbitration Agreement terms would not result in a
fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a
court would. All issues are for the arbitrator to decide, including, but not limited to, issues
relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although
arbitration proceedings are usually simpler and more streamlined than trials and other judicial
proceedings, the arbitrator can award the same damages and relief on an individual basis that a
court can award to an individual under these Terms and applicable law. Decisions by the
arbitrator are enforceable in court and may be overturned by a court only for very limited
reasons.
Unless the parties agree otherwise, any arbitration hearing will take place in Santa Clara County,
California. If your claim is for$10,000 or less,you may choose whether the arbitration will be
conducted solely on the basis of documents submitted to the arbitrator, through a telephonic
hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds
$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner
in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision
sufficient to explain the essential findings and conclusions on which the award is based.
20.3 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND BRIGHTSIGN AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST
THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS
MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR
PROCEEDING. UNLESS BOTH YOU AND BRIGHTSIGN AGREE OTHERWISE, THE
ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR
PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A
CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE
ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND
DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING
RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF
NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
20.4 Consolidation,joinder. If more than one arbitration is commenced under this Arbitration
Agreement and any party contends that two or more arbitrations are substantially related and that
the issues should be heard in one proceeding, the arbitrator(s) selected in the first-filed
proceeding shall determine whether, in the interests of justice and efficiency, the proceedings
should be consolidated before that arbitrator(s).
20.5 Notice Requirement and Informal Dispute Resolution
Before either party may seek arbitration, the party must first send to the other parry a written
Notice of Dispute ("Notice") describing the nature and basis of the claim or dispute, and the
requested relief. The Notice to BrightSign must be sent by certified mail and addressed to: Attn:
Legal, P.O. Box 320250, Los Gatos, CA 95032-0104. After the Notice is received, the parties
will attempt in good faith to resolve the claim or dispute informally. If the parties do not resolve
the claim or dispute within forty-five (45) days after the date Notice is received, either parry may
begin an arbitration proceeding. The amount of any settlement offer made by any parry may not
be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if
any, to which either party is entitled.
20.6 Confidentiality
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will
be strictly confidential for the benefit of all parties.
21. GENERAL PROVISIONS
21.1 Entire Agreement and Order of Precedence. These Terms form the the entire agreement
between BrightSign and Customer regarding Customer's use of the Services and supersedes all
prior and contemporaneous agreements,proposals or representations, written or oral, concerning
its subject matter. The parties agree that any term or condition stated in a Customer purchase
order or in any other Customer order documentation(excluding Order Forms) is void. In the
event of any conflict or inconsistency among the following documents, the order of precedence
shall be: (1) the applicable Order Form, (2) these Terms, and(3)the Documentation. Titles and
headings of sections of these Terms are for convenience only and shall not affect the
construction of any provision of these Terms.
21.2 Relationship of the Parties. The parties are independent contractors. These Terms does not
create a partnership, franchise,joint venture, agency, fiduciary or employment relationship
between the parties. Each party will be solely responsible for payment of all compensation owed
to its employees, as well as all employment-related taxes.
21.3 Assignment. Customer may not, without BrightSign's prior written consent, assign,
delegate, or otherwise transfer any part of these Terms, or any of its rights or obligations under
these Terms, to any parry, whether voluntarily or by operation of law, including by way of sale
of assets, merger or consolidation. BrightSign may freely assign or transfer these Terms.
21.4 Third-Party Beneficiaries. Other than in connection with indemnification obligations, there
are no third-party beneficiaries under these Terms.
21.5 Waiver. No failure or delay by either party in exercising any right under these Terms will
constitute a waiver of that right.
21.6 Notice. Except as otherwise specified in these Terms, all notices related to these Terms will
be in writing and will be effective upon(a)personal delivery, (b) the second business day after
mailing, or(c) except for notices of termination or an indemnifiable claim("Legal Notices"),
which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related
notices to Customer will be addressed to the relevant billing contact designated by Customer. All
other notices to Customer will be addressed to the relevant Services administrator or
representative designated by Customer.
21.7 Severability. If any provision of these Terms is held by a court of competent jurisdiction to
be contrary to law, the provision will be deemed null and void, and the remaining provisions of
these Terms will remain in effect.
21.8 Force Majeure. BrightSign shall not be liable to you or any third parry for any delay or non-
performance of its obligations under these Terms arising from any cause or causes beyond its
reasonable control or reasonable control of its suppliers or Authorized Resellers, including,
without limitation, any of the following: acts of God, war, fire, flood, civil unrest or commotions,
disease, epidemic,pandemic, embargos, or government intervention or action.
22. DEFINITIONS
"Affiliate"means any entity that directly or indirectly controls, is controlled by, or is under
common control with the subject entity. "Control," for purposes of this definition, means direct
or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Authorized Reseller(s") means a reseller, distributor or another channel partner authorized in
writing by BrightSign to sell the Devices or subscriptions to the Services and related products
and applications.
"BrightSign" or"us", "we", "our" or"ours" shall refer to BrightSign LLC and its subsidiaries
and Affiliates.
"Customer" or"you", "your" or"yours"means in the case of an individual accepting these
Terms on his or her own behalf, such individual, or in the case of an individual accepting these
Terms on behalf of a BrightSign or other legal entity, the BrightSign or other legal entity for
which such individual is accepting these Terms, and its Affiliates (for so long as they remain
Affiliates)which have entered into Order Forms.
"Customer Data"means Customer's electronic data, information or other content, in any form or
medium (whether in text,pictures, audio, video, logos, works copy or other materials), that the
Customer shares, uploads or submits through the Services, or that incorporates or is derived from
the processing of such information, data or content by or through the Services, excluding System
Data.
"Devices"means BrightSign hardware devices purchased either directly from BrightSign or
from one of its Authorized Resellers.
"Documentation"means manuals, specifications, instructions and other documents and materials
that BrightSign provides or may provide or make available to you in any form or medium which
describes the functionality, components, features or requirements of Hardware Devices or
Services, including any aspect of the installation, configuration, integration, operation,use,
support or maintenance thereof.
"Order Form"means an ordering document or online order specifying the Services to be
provided under these Terms that is entered into between Customer and BrightSign or any of their
respective Affiliates, including any addenda and supplements thereto. By entering into an Order
Form, an Affiliate agrees to be bound by these Terms as if it were an original party.
"Third-Party Applications"means any products, content, services, information, websites, devices
or other materials that are owned by third parties and are incorporated or integrated into or
accessible through the Services or the Devices.
"System Data"means data regarding the performance, availability, usage, integrity and/or
security of the Services.
"User"means an individual or entity who is authorized by Customer to use the Services, for
whom Customer has purchased a subscription(or in the case of any Services provided by
BrightSign without charge, for whom the Services have been provisioned), and to whom
Customer(or, when applicable, BrightSign at Customer's request)has supplied a user
identification and password to for the Services. Users may include, for example, Authorized
Resellers, employees, consultants, contractors, and other agents of Customer, and third parties
with whom Customer transacts business. Customer is responsible for all of the Users using the
Services under Customer's account.
MC TO SIGN_BrightSign Content Cloud
renewal
Final Audit Report 2024-06-27
Created: 2024-06-27
By: Ikhra Mohamed(imohamed@kentwa.gov)
Status: Signed
Transaction ID: CBJCHBCAABAAgL5GXDF_B20YeGzTB-t4r5ErpYV6KCna
WC TO SIGN_BrightSign Content Cloud renewal" History
Document created by Ikhra Mohamed (imohamed@kentwa.gov)
2024-06-27-5:33:01 PM GMT
Document emailed to Mike Carrington (mcarrington@kentwa.gov)for signature
2024-06-27-5:33:16 PM GMT
140 Document e-signed by Mike Carrington (mcarrington@kentwa.gov)
Signature Date:2024-06-27-5:41:01 PM GMT-Time Source:server
Q Agreement completed.
2024-06-27-5:41:01 PM GMT
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