Last update: August 21, 2024

This document, the Brightmerge Terms of Service Agreement (“Agreement”), establishes a binding contract between the user ("Customer") and Brightmerge USA Inc. ("Brightmerge"). Carefully read this Agreement before using, accessing, or browsing the Brightmerge Service, including applications, mobile, software, websites, or other properties owned or operated by Brightmerge ("Brightmerge Platform"), or by registering for a Brightmerge account (“Services”).

If Customer is using the Services on behalf of an organization, Customer agrees to this Agreement on behalf of that organization, asserting that Customer has the authority to bind that organization to this Agreement. This is applicable unless the organization has a separate paid contract in effect with Brightmerge, in which case, that contract's terms will govern the use of the Services.

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DEFINITIONS

1. “Confidential Information” All information marked confidential.

2. “Customer Data” - All content, data, and information entered into the Services by or on behalf of the Customer, and the output generated by the Customer through the use of the Services. 

3. “Documentation” - Administration guides, user guides, videos, and release notes provided by Brightmerge to Users of the Services. 

4. “Intellectual Property Rights” - Patents, copyrights, trademarks, know-how, trade secrets, moral rights, and other intellectual property rights. 

5. “Effective Date” - The date of Customer initial access to Services through any registration or order process, or the effective date of the first order on a Brightmerge order form referencing this Agreement. 

6. “Scope of Use” - The specific scope of usage of the Services permitted under this Agreement. 

7. “User” - The number of named individuals permitted to concurrently access and use the Services per project during the Term. 

8. “Term” - The term of this Agreement as set forth in Section ‎8 below.

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RESTRICTIONS AND ACCESS TO SERVICES

1. Services Access - Customer is granted a non-exclusive, non-sublicensable, non-transferable limited license during the Term to access and use the Services within the Scope of Use.

2. Restrictions - No implied licenses. Brightmerge and its licensors reserve all rights, title, and interest in the Services. Customer shall not decompile, reverse engineer, or use the Services for the benefit of third parties.

3. Support - Brightmerge will provide updates and technical support as described in Appendix A. 

4. Ownership of Services - Brightmerge retains all rights, title, and interest in the Services. Customer grants Brightmerge a license to use any feedback provided by the Customer.

5. Services Modifications - Brightmerge may modify the Services with notice to the Customer.

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Support and Maintenance

1. Support Services: The Brightmerge shall provide technical support and maintenance services for the Services during regular business hours. Response times and support levels are described in Sub-Section ‎3).

2. Additional Services: Any support services beyond the standard offering may be subject to additional fees and terms as agreed upon by the Parties in writing.

3. Service Availability:

   • Brightmerge will use commercially reasonable efforts to ensure that the Brightmerge Platform is available and accessible to the Customer at least 99.9% of the time, excluding scheduled maintenance windows.

   • Scheduled maintenance windows will be communicated to the Customer in advance, with reasonable notice provided.

   • Brightmerge will promptly address any unplanned outages or disruptions and restore service within a reasonable timeframe.

4. Performance and Response Time:

   • Brightmerge will strive to maintain optimal performance of the Brightmerge Platform and ensure that it operates efficiently.

   • Brightmerge commits to responding to any reported incidents or support requests within 48 hours during normal business hours.

5. Data Security and Privacy:

   • Brightmerge will implement appropriate technical and organizational measures to protect the security and confidentiality of Customer's data stored or processed within the Brightmerge Platform.

   • Brightmerge will comply with applicable data protection laws and regulations, and will not disclose or share Customer's data with any unauthorized third parties.

6. Data Backup and Recovery:

   • Brightmerge will regularly backup Customer's data stored within the Brightmerge Platform to ensure its integrity and availability.

   • In the event of data loss or system failure, Brightmerge will employ reasonable efforts to restore the data from the most recent backup.

7. Support and Escalation:

   • Brightmerge will provide Customer support services to assist the Customer with any inquiries, issues, or technical difficulties related to the Brightmerge Platform.

   • Support inquiries will be categorized based on severity levels, and Brightmerge will escalate and allocate appropriate resources to resolve critical issues promptly.

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PROFESSIONAL SERVICES

1. Professional Services - Professional Services shall be provided under a separate statement of work accepted by both parties.

2. Ownership of Work Product - Brightmerge owns all Intellectual Property Rights in developments, works-of-authorship, and inventions resulting from Professional Services unless otherwise agreed in writing.

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DATA

1. Security Procedures. Brightmerge employs commercially reasonable security procedures to protect Customer Data. Customer shall prevent unauthorized access to Services and promptly notify Brightmerge of any such access, cooperating to terminate it.

2. Customer Ownership of Data. Customer Data is owned by the Customer, with retained rights, title, and Intellectual Property Rights. Brightmerge reserves rights to derivative data.

3. No Obligations. Brightmerge doesn't pull specific data, and Customer controls input. Customer is responsible for consents, notifications, and privacy law compliance. Brightmerge may gather usage data to optimize Services.

4. The Customer grants to the Brightmerge a limited license to copy, transmit, store and back-up or otherwise access, use or make reference to any Intellectual Property Rights in Customer Data:

   • to supply the Services including to enable Customer, its personnel and any authorized users to access and use the Services;

   • to do analysis for the purposes of predictive safety analytics, industry guideline production and other construction safety-related uses, provide such Data is re-identified;

   • for diagnostic purposes;

   • to test, enhance and otherwise modify the Services whether requested by Customer or not;

   • to develop other Services; and

   • as reasonably required for the performance of Brightmerge’s obligations under this Agreement.

5. Customer represents and warrants that:

   • any and all Customer Data supplied by Customer or otherwise accessed by  Brightmerge through the provision of the Services is the sole and exclusive property of Customer or Customer has secured any and all authorizations and rights to use Customer Data as applicable;

   • Customer Data does not breach any relevant laws, regulations or codes;

   • Customer Data does not infringe the Intellectual Property Rights of any third party;

   • it will comply with all applicable laws and regulations in the jurisdiction where the Customer accesses and publishes content using the Services; and

   • to the extent that the Customer Data contains personal data, it has obtained the necessary consents in order to transfer or permit access to such data in accordance with applicable privacy and data protection laws.

6. Customer acknowledges and agrees that:

   • any collation, conversion and analysis of data performed as part of the Services whether by the Services or otherwise is likely to be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of data. Brightmerge is not liable for any such errors, omissions, delays or losses. Customer acknowledges and agrees it is responsible for adopting reasonable measures to limit the impact of such loss or error;

   • Brightmerge is not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by the Customer, its personnel, its Related Bodies Corporate or any authorized users; and

   • Brightmerge is not responsible for the integrity or existence of any data on the Customer’s environment, network or any device controlled by the Customer or its personnel.

7. Customer agrees to indemnify and hold the Brightmerge harmless for the corruption or loss of any Customer Data controlled or stored by Customer, to extent the corruption or loss is not caused by the negligent act or omission of Brightmerge or its Personnel.

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FEES AND PAYMENT

1. Fees. Customer pays quoted amounts. Fees are non-cancelable and non-refundable, based on Services subscriptions.

2. Payment and Taxes. Invoiced amounts are due in thirty days. Overdue amounts incur a late payment charge. Payments are in United States dollars. Customer pays imposed taxes, excluding Brightmerge’s net income taxes.

3. Subscriptions and Billing Options: These payment terms apply to Customer subscription to the Services. By subscribing to the Services, Customer agrees to these terms. Brightmerge offer various subscription plans, including monthly, annual, and one-time payments, depending on the product type. Brightmerge payment processing is securely managed through Stripe Inc (“Stripe”).

4. Subscription Plans and Pricing

   • Monthly Subscriptions: Billed on a month-to-month basis. Customer will be automatically charged at the beginning of each billing cycle.

   • Annual Subscriptions: Billed in advance for a 12-month period. Provides a discounted rate compared to the monthly subscription. Automatically renews at the end of each billing cycle.

5. One-Time Payments: Required for specific products or services that are available for a single purchase. Payment is made up front and grants lifetime access or use as specified on the purchase page.

   • All prices are listed on Brightmerge website and may be subject to change. Any price changes will be communicated to Customer in advance.

6. Payment Methods and Processing

   • Brightmerge accept payments through credit cards, debit cards, and other payment methods facilitated by Stripe.

   • By providing a payment method, Customer authorizes Brightmerge to charge Customer for the subscription plan selected, including any recurring charges for subscription renewals.

   • Ensure Customer payment information is up to date. If Brightmerge cannot process a payment, Customer subscription may be suspended or canceled.

7. Cancellations and Refunds

   • Monthly Subscriptions: Customer may cancel at any time. Cancellations will take effect at the end of the current billing cycle.

   • Annual Subscriptions: Cancellations within the first 30 days will receive a full refund. After 30 days, Customer may cancel, but refunds will not be provided for the unused portion of the term.

   • One-Time Payments: These are generally non-refundable except as required by law or as specified at the time of purchase.

8. Late Payments and Non-Payment

   • Late payments may result in temporary suspension of Customer subscription.

   • If payment is not received within a specified grace period, Customer subscription may be terminated.

9. Notifications. Brightmerge will provide notifications for any payment issues that arise.

10. Security. Brightmerge use Stripe to ensure Customer payment information is securely processed and stored. Brightmerge does not directly access or store Customer payment card details.

11. Changes to Payment Terms. Brightmerge reserves the right to modify these payment terms at any time. Any changes will be effective immediately for new subscribers and, for existing subscribers, thirty days after posting notice of such changes.

12. Contact Information. For any questions or concerns regarding Customer subscription or these payment terms, please contact Brightmerge support team at support@brightmerge.com

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DISCLAIMER AND WARRANTIES

Mutual Representations. Each party represents its authority to enter this Agreement without violation of existing agreements.

Additional Brightmerge Representations. Brightmerge assures Services align with Documentation and professional standards.

DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND MATERIALS (INCLUDING SOFTWARE) PROVIDED HEREUNDER BY BRIGHTMERGE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND NEITHER BRIGHTMERGE NOR ITS SUPPLIERS MAKE ANY WARRANTIES, AND HEREBY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. BRIGHTMERGE DOES NOT WARRANT AND EXPRESSLY DISCLAIMS ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, AND DOES NOT WARRANT THAT USE WILL BE UNINTERRUPTED OR ERROR-FREE. IF CUSTOMER ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS OF SERVICE, CUSTOMER SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.

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TERM AND TERMINATION

1. Term. The Term begins on the Effective Date. Brightmerge may modify this Agreement, and the most current version is available on www.Brightmerge.com. Failure to accept changes requires cessation of use and account deletion, achievable through user account settings.

2. Termination. Brightmerge may terminate this Agreement if Customer defaults in material obligations and fails to remedy within thirty (30) days after written notice. Upon termination, access to Services ceases, and Customer must discontinue use. Customer Data stored may become unretrievable, with no obligation from Brightmerge to maintain it.

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INDEMNIFICATION

1. Brightmerge General Indemnification. Brightmerge indemnifies Customer against Liability resulting from its gross negligence, willful misconduct, or breach of Data Section.

2. Brightmerge IP Indemnification. Brightmerge indemnifies Customer against Liability from Brightmerge Platform infringement claims, excluding certain circumstances. If infringement claimed, Brightmerge may procure rights, replace or modify the service, or terminate the Agreement and refund prorated fees.

3. Customer Indemnification. Customer indemnifies Brightmerge against Losses from its Data Section breach, use of Customer Data by Brightmerge, or Customer’s gross negligence, fraud, or willful misconduct.

4. Indemnification Procedures. Prompt notice of a claim, control of defense, and reasonable assistance are required for indemnification. Settlements must have the indemnified party's consent unless they involve an admission of wrongdoing or criminal proceedings.

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LIMITATIONS OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED, EXCLUSION OF DAMAGES: NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

MAXIMUM LIABILITY: NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL FEES PAID BY THE CUSTOMER TO THE BRIGHTMERGE DURING THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

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CONFIDENTIALITY

1. Confidential Information: Both Parties shall treat all confidential information disclosed by the other Party as confidential and shall not disclose, use, or reproduce such information without the disclosing Party's prior written consent, except as required by law.

2. Exceptions: The obligations of confidentiality shall not apply to information that is already in the public domain, independently developed without reference to the disclosing Party's confidential information, or rightfully obtained from a third party without breach of any confidentiality obligation.

3. Brightmerge may use the Customer logo and business name in its own marketing and may use Customer information to create marketing collateral.

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EXPORT

Brightmerge Platform and related technical data. Customer must comply with U.S. export control laws and other applicable regulations, obtaining necessary licenses for the export, re-export, or import of Brightmerge Platform  and related technical data.

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GENERAL

1. Assignment. Neither party can assign this Agreement without written consent, except in specific cases. The Agreement is binding on successors and permitted assigns.

2. No Agency. Customer and Brightmerge acknowledge an independent contractor relationship. Neither party has power to control the other's activities or create a partnership.

3. Compliance with Laws. Both parties agree to comply with all applicable laws and regulations.

4. Notices. Written notices shall be delivered personally, via courier, certified mail, or verified email. Parties can change contact information with notice.

5. Governing Law; Venue and Jurisdiction. This Agreement is governed by Delaware law, any legal action will be in federal or state courts in Dover, Delaware. Parties consent to jurisdiction and venue.

6. Injunctive Relief. Parties acknowledge injunctive relief for certain breaches. Either party can seek equitable remedies alongside legal remedies.

7. Entire Agreement and Waiver. This Agreement constitutes the entire agreement. Confidentiality agreements continue to apply. Changes require written agreement. No failure to enforce rights acts as a waiver.

8. Severability. If a provision is unenforceable, it will be enforced to the maximum extent allowed by law, and other provisions will remain in effect. Parties will negotiate a suitable replacement if the provision is essential.

9. Counterparts. This Agreement may be executed in counterparts, each deemed an original.

10. Force Majeure. Neither party is liable for delays or failures beyond its reasonable control.

11. United States Government Users. If a user or Customer of Brightmerge Platform is an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of Brightmerge Platform , or any related Documentation of any kind, including technical data or manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation 227.7202 for military agencies. Brightmerge Platform  is commercial computer software, and the related Documentation is commercial computer software documentation. The use of Brightmerge Platform  and related documentation is further restricted in accordance with the terms of this Agreement, and any modification hereto.

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ACCEPTABLE USE POLICY

1. This policy governs the acceptable use of the Services by the Customer.

2. No Spam. Customer must not use the Services for unsolicited messages ("spam") or send unauthorized commercial or marketing messages.

3. No Deception. Messages sent via the Services must accurately identify Customer, refrain from deceptive content, and include Customer's valid physical address, complying with all applicable laws.

4. Age of Majority. The Services are not for individuals under 18 (or the local age of majority if greater). Customers and authorized users must meet the requisite age.

5. No Harmful Behavior. Customer must not breach any agreement with Brightmerge or use the Services to:

6. Interfere with others' use of the Services. 

7. Obtain materials or information through unauthorized means. 

8. Provide false information or impersonate others. 

9. Engage in harassing, fraudulent, or privacy-infringing activities. 

10. Solicit personal information from children under 18. 

11. Interfere with security features or use automated means to access the Services. 

12. Modify executed documents or transactions. viii. Introduce harmful code to the Services. 

13. Use automated devices to access, retrieve, or index the Services.

14. Brightmerge reserves the right to modify this policy with written notice to the Customer at its sole discretion.

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Appendix A: Service Level Agreement (SLA)

This Service Level Agreement ("SLA") is an integral part of the agreement between Brightmerge USA INC. ("Brightmerge") and the user ("Customer") for the provision of services through the Brightmerge Platform. This SLA outlines the specific service level commitments and responsibilities of both parties.

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Service Availability:

1. Brightmerge will use commercially reasonable efforts to ensure that the Brightmerge Platform is available and accessible to the Customer at least 99% of the time, excluding scheduled maintenance windows.

2. Scheduled maintenance windows will be communicated to the Customer in advance, with reasonable notice provided.

3. Brightmerge will promptly address any unplanned outages or disruptions and restore service within a reasonable timeframe.

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Performance and Response Time:

1. Brightmerge will strive to maintain optimal performance of the Brightmerge Platform and ensure that it operates efficiently.

2. Brightmerge commits to responding to any reported incidents or support requests within 48 hours during normal business hours.

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Data Security and Privacy:

1. Brightmerge will implement appropriate technical and organizational measures to protect the security and confidentiality of Customer 's data stored or processed within the Brightmerge Platform.

2. Brightmerge will comply with applicable data protection laws and regulations, and will not disclose or share Customer 's data with any unauthorized third parties.

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Data Backup and Recovery:

1. Brightmerge will regularly backup Customer's data stored within the Brightmerge Platform to ensure its integrity and availability.

2. In the event of data loss or system failure, Brightmerge will employ reasonable efforts to restore the data from the most recent backup.

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Support and Escalation:

1. Brightmerge will provide Customer support services to assist the Customer  with any inquiries, issues, or technical difficulties related to the Brightmerge Platform.

2. Support inquiries will be categorized based on severity levels, and Brightmerge will escalate and allocate appropriate resources to resolve critical issues promptly.

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This SLA, along with the main agreement, forms a binding contract between Brightmerge and Customer. The parties acknowledge their understanding and agreement to the terms and conditions outlined herein.