These Terms of Service (as amended from time to time, these “Terms”) govern your use and access to the Service (as defined below) provided by or onbehalf of Brillian (“Brillian,” “we,” “us,” or “our”).
BY CLICKING A CHECKBOX OR OTHERWISE INDICATING ACCEPTANCE OF THESE TERMS, YOU HEREBY AGREE TO BE BOUND BY THESE TERMS.
For purposes of these Terms, "you" refers to you as the user of the Service. If you are entering into these Terms on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms, in which case the terms "you" or "your" shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and may not use the Service.
We reserve the right, at our sole discretion, to change or modify portions of these Terms at any time. If any change materially adversely affects your use of the Service, we will use reasonable efforts to notify you of such change, such as by emailing the email address associated with your account or by posting a notice on https://brillian.co. Your use of the Service after the date any such changes become effective constitutes your acceptance of the revised Terms.
1.1
"Confidential Information" means all business, technical or third party information of a party, including trade secrets, know-how, processes, pricing and financial data, software and documentation, which are provided, disclosed, or made available to the other party pursuant to these Terms that is either identified, orally or in writing, as confidential or would be understood to be confidential by a reasonable person under the circumstances of disclosure.
1.2
"Service" means Brillian's proprietary software platform, as made available on https://brillian.co (together with any subdomains or successor sites), together with all updates and upgrades thereto.
1.3
"Service Providers" means financial advisors, accountants, business advisors, lawyers or other similar service providers.
2.1
Implementation
As part of onboarding, you may be requested to provide documents and information regarding your business and to permit the Service to access certain of your systems or third party applications that you use. If you are a business owner, you may, through the user designated with administrative access, invite Service Providers to use the Service and to permit such Service Providers to have access to your data and reports. If you are a Service Provider, you will also have the ability to invite your clients to use the Service, provided that you will not receive access to such clients' data unless they expressly opt in to share such data with you.
2.2
Access to the Service
Subject to the terms and conditions of these Terms, Brillian hereby grants you a non-exclusive right to access and use the Service solely for your internal business purposes during the Subscription Term.
2.3
Usage Restrictions
You will not, and will not permit any third party to:
(a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, or underlying structure, ideas, know-how or algorithms relevant to the Service (except to the extent such restrictions are contrary to applicable law);
(b) modify, translate, copy, or create derivative works based on the Service;
(c) use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party;
(d) use the Service to create or develop a competitive product or service;
(e) attempt to gain unauthorized access to the Service or make the Service available to anyone;
(f) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs through the Service;
(g) interfere with or disrupt the integrity or performance of the Service;
(h) circumvent, remove, alter or thwart any technological measure or content protections of the Service;
(i) use any spider, crawler, scraper or other automatic device, process or software that intercepts, mines, scrapes, extracts or otherwise accesses the Service to monitor, extract, copy or collect information or data from or through the Service;
(j) use the Service in violation of applicable law (including applicable export controls laws); or
(k) otherwise use the Service except as expressly permitted herein.
2.4
Administrative Controls
As part of the registration process, you will designate a user to have administrative controls. Such administrative controls will include giving designated users the right to upload, view, edit and/or otherwise access your data and reports on the Service. You are solely responsible for controlling data access through your administrative controls. Brillian may solely rely on such access controls you set through your administrative controls and Brillian has no further responsibility to confirm a user's right to access your data. If you give any Service Provider access to your data and reports, you hereby represent that such Service Providers have been engaged by you in a professional relationship and are permitted to upload, access and/or view your data and reports on the Service in accordance with the access controls you set.
2.5
Account Access
To access the Service, you will create a password that is linked to the e-mail address associated with your account. You may also elect to sign in to the Service using a third-party account and if you do so, you authorize the applicable third party provider to share account information with us and to permit us to use such information to create and manage your account. You are not permitted to share your account with any other person or entity. You agree that you are responsible for maintaining the confidentiality of your account information. You acknowledge that you are solely responsible for any liabilities arising from any activity that occurs through your account.
2.6
Modifications
From time to time, we may modify, amend, alter, supplement or replace the Service, in whole or in part. You agree that your acceptance of these Terms is not contingent on Brillian developing, delivering or otherwise making available any future functionality or features of the Service, or dependent on any oral or written public comments made by Brillian regarding future functionality or features of the Service.
2.7
Third Party Services
The Service contains certain features and functionalities that integrate and/or interoperate with certain third party products, services or applications, including those that you elect to integrate with the Service (the "Third Party Services"). All use of Third Party Services are subject to the applicable terms of the provider of such Third Party Service. Brillian is not responsible for any Third Party Service, including for the availability or reliability of a Third Party Service, or the accuracy or completeness of information shared by or available through such Third Party Service, or the privacy practices of the provider of such Third Party Service.
2.8
Beta Services
From time to time, we may make certain features or functionalities available to you that are identified as "beta", "pilot", "limited release" or other similar designation (the "Beta Offerings"). You may choose to try such Beta Offerings or not in your sole discretion. Notwithstanding anything to the contrary in these Terms, your access and use of the Beta Offerings shall be on an "AS IS" basis without warranty of any kind and we shall not have any liability of any kind with respect to your access and use of a Beta Offering.
2.9
AI Features
You acknowledge and agree that the Service utilizes various artificial intelligence ("AI") tools and produces certain summaries, recommendations or other output (collectively, "Output") using such AI tools. There are numerous limitations that apply with respect to Output generated by AI Tools due to the fact that it is automatically generated, including that they may contain errors or misleading information. You agree that you are responsible for any reliance on the accuracy, completeness, or usefulness of any Output. You further acknowledge that the Service is a tool and not a decision maker; accordingly, you are solely responsible for determining the suitability of any recommendation or suggestion received from the Service.
2.10
Messaging Services
The Service may allow you to send messages or otherwise have conversations with Brillian and/or other users of the Service. You may not send any message or otherwise post or upload any content that (a) infringes a third party's intellectual property or publicity right, (b) constitutes spam or other unsolicited or unauthorized advertising or promotional materials, (c) is false, misleading, fraudulent, harassing, libelous or otherwise objectionable, or (d) violates any applicable law. You agree that you are solely responsible for your interactions with any other user in connection with the Service, and Brillian will have no liability or responsibility with respect thereto. Brillian reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
2.11
Text Messages
If you provide your phone number to Brillian, you expressly consent to receive text messages from Brillian at the number provided, including: (a) service-related messages such as report notices, account alerts, and platform notifications; and (b) promotional and offer-related messages about Brillian's or its partners' products, features, and services. You acknowledge that such messages may be sent using an automatic telephone dialing system (ATDS) or other automated means, and that your consent constitutes consent under the Telephone Consumer Protection Act, 47 U.S.C. § 227 and applicable state laws.
In the event you no longer wish to receive promotional text messages, you can reply to any promotional text message you receive from us by texting "STOP". Following your opt-out request, you may receive a final confirmation message. Opting out of promotional messages does not affect your receipt of service-related messages necessary to administer your account. There is no additional charge for telephonic communications, but message and data rates may apply. We are not liable for any delays in the receipt of, or any failures to receive, any text messages, as delivery is subject to effective transmission by your mobile carrier and compatibility of your mobile device.
3.1
Uploaded Data
You are responsible for the accuracy, quality and legality of all data, content, information, and other materials uploaded, posted or otherwise provided to or through the Service by you, including all information provided as part of your registration with the Service ("Uploaded Data"). You represent and warrant that you have obtained all necessary and appropriate consents, approvals and rights to collect, process, use, and disclose the Uploaded Data and allow Brillian the right to use, store, disclose and otherwise process such Uploaded Data as contemplated by these Terms.
You hereby grant Brillian a non-exclusive, royalty-free, fully-paid worldwide license (with the right to sublicense to Brillian's subcontractors, service providers and partners) to access, use, reproduce and create derivative works of Uploaded Data to provide, support and improve the Service. Further to the foregoing, you acknowledge that a fundamental component of the Service is the use of machine learning for the purpose of improving and providing the Service. Accordingly, you agree that Brillian is hereby granted the right to retain and use (during and after the Subscription Term) Uploaded Data in de-identified form to train its artificial intelligence and machine learning models and algorithms.
3.2
Usage Data
Brillian shall have the right to collect and analyze data and other information relating to your use and access of the Service ("Usage Data") and Brillian will be free (during and after the Subscription Term) to use such Usage Data for any lawful purpose, provided that any disclosure of Usage Data shall be solely in aggregate or other de-identified form.
4.1
Our Rights
We shall own and retain all right, title and interest in and to the Service, and all improvements, enhancements or modifications thereto, and all intellectual property rights related to any of the foregoing. All rights to the Service not expressly granted under these Terms are reserved by Brillian.
4.2
Feedback
You acknowledge that all suggestions for corrections, changes, additions or modifications to the Service or any features or functionalities thereof, and any other feedback you provide (collectively, "Feedback") are the exclusive property of Brillian and you hereby assign all rights in and to any Feedback to Brillian.
4.3
Your Rights
As between the parties, subject to our rights to use Uploaded Data pursuant to Section 3, you own all right, title and interest in and to Uploaded Data.
5.1
Payment
You agree to pay the fees due for your subscription to the Service (the "Fees"). You will be required to select a payment plan and provide Brillian information regarding your credit card or other payment instrument. You represent and warrant to Brillian that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes that may occur. You hereby authorize Brillian (or its third party payment processor) to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. We reserve the right to change our prices upon thirty (30) days' notice.
Alternatively, Brillian may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Brillian thirty (30) days after the mailing date of the invoice. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with use of the Service other than U.S. taxes based on Brillian's net income.
6.1
Confidential Information
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose Confidential Information. Confidential Information of Brillian includes non-public information regarding features, functionality and performance of the Service, and pricing terms for the Service. The Receiving Party agrees: (a) to use at least the same care and precaution in protecting the Disclosing Party's Confidential Information as the Receiving Party uses to protect its own proprietary information and trade secrets, but in no event less than a reasonable degree of care and (b) not to use or disclose to any third person any of Disclosing Party's Confidential Information except for the Receiving Party's employees, contractors, attorneys, advisors and potential investors who are bound by written agreement to keep such information confidential. For clarity, the limitations of this Section 6 will not restrict the rights granted above in Section 3 with respect to Brillian's use of Uploaded Data.
6.2
Exceptions
The Disclosing Party agrees that the foregoing Section 6.1 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 receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.
6.3
Disclosure by Law
Notwithstanding this Section 6, the Receiving Party may disclose the Confidential Information of the Disclosing Party in the event that the Receiving Party receives a subpoena or other government process that purports to require the production of Confidential Information of the Disclosing Party for use in an action or proceeding, provided that the Receiving Party shall (a) promptly inform the entity issuing such subpoena or other government process of the existence of these Terms, (b) promptly inform the Disclosing Party of the receipt of such subpoena or other government process and (c) not oppose any effort by the Disclosing Party to quash or limit any such subpoena or other government process.
In the event the Disclosing Party fails to intervene to quash or limit such subpoena or other government process after being given notice and a reasonable opportunity to do so or such intervention fails or is denied by a court of competent jurisdiction, such Confidential Information may be produced; provided, that such Confidential Information shall not lose its confidential status through such use and the Receiving Party shall take all reasonable and necessary steps to maintain the confidentiality of such Confidential Information during such use.
6.4
Return of Confidential Information
Upon the request of either party, copies and embodiments of such party's Confidential Information shall be promptly returned to such party by the Receiving Party or destroyed by the Receiving Party, and the Receiving Party agrees to certify such destruction in writing.
7.1
Termination
These Terms will apply to you during your applicable subscription period (the "Subscription Term"). Upon termination, you may continue to access the Service as long as your account remains active; however, your access to data and certain features and the functionalities of the Service may be terminated. However, we may terminate your account and access to the Service upon thirty (30) days' notice (or ten (10) days in the case of nonpayment), if you breach any of the terms or conditions of these Terms.
7.2
Suspension
Without limiting our rights under Section 7.1, we may immediately suspend access to the Service if you breach these Terms until such breach is cured.
7.3
Effects of Termination
No termination of these Terms shall affect any rights or liabilities of a party that accrued prior to the date of termination, including any Fees accrued or payable to Brillian prior to the effective date of termination.
7.4
Survival
The provisions of Sections 1, 3, 4, 5, 6, 7.3, 7.4, 8, 9, 10, and 11 shall survive any termination of your access to the Service.
8.1
By Both Parties
Each party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing under the laws of the state of its formation or incorporation and has full right and power to accept these Terms and to perform fully all of its obligations hereunder; and (b) it is not party to any other agreements, written or oral, with any third party in conflict herewith.
8.2
By Brillian
Brillian represents and warrants that the Service will operate in conformity with any specifications set forth in writing by Brillian in all material respects. In the event of a breach of the warranty in this Section 8.2, you shall notify Brillian in writing of the alleged issue, providing details of the problems, and upon confirmation of the issue by Brillian, Brillian will use commercially reasonable efforts to promptly correct any identified problem or provide work-arounds that address the identified issue to enable the Service to perform in accordance with this limited warranty.
If Brillian is unable to correct any identified problem, Brillian shall notify you and you have the right to terminate your account upon thirty (30) days' written notice to Brillian and Brillian will refund you any pre-paid amounts for periods that have not yet occurred on the date of termination. The foregoing shall be Brillian's sole obligation and exclusive liability, and your sole and exclusive remedy, for any breach of the warranty in this Section 8.2. This Section 8.2 shall not apply to your use of any Beta Offering or during any period when you are accessing the Service for free.
8.3
Disclaimer
EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN THIS SECTION 8, THE SERVICE, AND ALL OTHER SERVICES, OUTPUT, DATA AND INFORMATION PROVIDED BY BRILLIAN ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY LAW, BRILLIAN HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. BRILLIAN DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE OR THAT THE QUALITY OF THE SERVICE, OR ANY OTHER SERVICES, DATA, INFORMATION, OR OTHER MATERIAL OBTAINED THROUGH USE OF THE SERVICE, WILL MEET YOUR EXPECTATIONS.
9.1
By Brillian
Brillian will (a) defend you from any claim, suit or proceeding ("Claim") brought by a third party against you alleging that the Service infringes any intellectual property right of such third party and (b) indemnify and hold you harmless from any damages, losses, expenses, costs or liabilities finally awarded against you by a court of competent jurisdiction as a result of such Claim.
Notwithstanding the foregoing, Brillian will have no obligation under this Section 9.1 or otherwise with respect to any Claim to the extent based upon (i) any unauthorized use, reproduction, or distribution of the Service or your breach of these Terms, (ii) any combination of the Service with other products, equipment, software or data not supplied by Brillian, (iii) any modification of the Service by any person other than Brillian or its authorized agents or contractors, or (iv) any activity after Brillian has provided you with a work around or modification that would have avoided such issue without materially adversely affecting the functionality or availability of the Service (items (i) through (iv), the "Excluded Activities").
If Brillian reasonably believes that all or any portion of the Service, or the use thereof, is likely to become the subject of any infringement Claim, Brillian may procure, at Brillian's expense, for you the right to continue using the Service in accordance with the terms hereof, replace or modify the allegedly infringing Service to make it non-infringing, or, in the event the preceding is infeasible or not commercially practicable, Brillian may, in its sole discretion, terminate your access to the Service upon written notice to you and Brillian will refund you any pre-paid amounts for periods that have not yet occurred on the date of termination. This Section 9.1 shall be your sole and exclusive remedy, and Brillian's sole and exclusive liability, with respect to any infringement claims relating to your use of the Service. This Section 9.1 will not apply to any Beta Offering, Third Party Service or use of the Service during any period when you are accessing the Service for free.
9.2
By You
You will indemnify, defend and hold harmless Brillian from any damages, losses, expenses, costs or liabilities incurred by Brillian in connection with any Claim brought against Brillian by a third party arising from or related to an Excluded Activity.
9.3
Indemnification Procedures
A party seeking indemnification under this Section 9 will provide the indemnifying party with prompt written notice of the relevant Claim (provided that the failure to provide prompt notice will only relieve the indemnifying party of its obligations to the extent it is materially prejudiced by such failure) and permit the indemnifying party to control the defense of such Claim. The indemnified party may employ counsel at its own expense to assist it with respect to such Claim; provided, however, that if such counsel is necessary because the indemnifying party does not assume control, the indemnifying party will be responsible for the expense of such counsel. The party controlling the defense of a Claim shall keep the other party advised of the status of such Claim and the defense thereof. Neither party shall have the authority to settle a claim on behalf of the other party.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BRILLIAN SHALL NOT BE LIABLE TO YOU OR ANY PARTY CLAIMING THROUGH YOU FOR (A) ANY INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF THESE TERMS OR ANY DELAY OR INABILITY TO USE THE SERVICE OR (B) ANY DAMAGES IN EXCESS OF THE AGGREGATE FEES PAID OR PAYABLE TO BRILLIAN HEREUNDER IN THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CLAIM FIRST AROSE, IN EACH CASE WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF BRILLIAN HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
11.1
Assignment
Neither party may assign these Terms without the other party's prior written consent, except that either party may assign these Terms in connection with a merger or sale of all or substantially all of such party's assets or stock. Any attempted assignment by either party in violation hereof will be null and void. Subject to the foregoing, these Terms will be binding on the parties and their successors and assigns.
11.2
Severability
If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
11.3
Entire Agreement
These Terms constitute the full and entire understanding and agreement of the parties with regard to the subject matter hereof, and supersede all prior agreements or understandings, written or oral, between the parties with respect to the subject matter hereof.
11.4
Governing Law; Venue
These Terms and any dispute arising hereunder shall be governed by the laws of the State of New York, without regard to the conflicts of law provisions thereof. Any legal action brought under or in connection with the subject matter of these Terms shall be brought only in the Federal or State courts within the County of New York, New York. Each party hereby irrevocably submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of these Terms in any other court or forum.
11.5
Force Majeure
Without limiting anything herein, and except for your payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including, but not limited to, governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, epidemics, pandemics and power failures. For all purposes under these Terms each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract.
11.6
Notices
Any notices in connection with these Terms will be in writing and sent, if to you, to the address associated with your account, and if to Brillian, to 1115 Broadway, 5th Floor, New York, NY 10011, or in each case such other address as may be properly specified by written notice hereunder.