Terms of Service
Welcome to BrightBytes, the online service of BrightBytes, Inc. (“BrightBytes,” “we,” or “us”). This page explains the terms by which you may use and otherwise interact with our online website, applications, and software provided on or in connection with BrightBytes’s proprietary online service, technology, and infrastructure for the distribution of tools and technologies to enable users to access, use, and analyze data, materials, and information relevant to the education market (such applications and software, collectively, “Applications,” and such service, technology, and infrastructure, the “Clarity Platform”).
By accepting these Terms, whether by checking a box indicating your acceptance or by executing a Partnership Agreement or a Service Agreement that references these Terms, you agree to the terms set forth herein. By using the Applications and the Clarity Platform, or otherwise obtaining services from, or providing services to, BrightBytes, you affirm that you: (1) are at least eighteen (18) years of age or older; and (2) have read, understand, and agree to be bound by all of the terms set forth herein and any other applicable terms.
Relationship to Other Agreements
1.1 License and Service Agreements.
Depending on the services or materials you will be providing to, or receiving from, BrightBytes, other terms may apply in addition to this Agreement. If you are a Partner who is or will be providing frameworks for analysis of data and information via the BrightBytes Clarity Platform (“Frameworks”), the terms of your License Agreement will apply. If you are a Customer of BrightBytes who is or will be purchasing access to Frameworks or other Applications via the Clarity Platform, the terms of your Service Agreement will apply. Throughout these Terms, “the Agreement” means these Terms and the terms of your Service or License Agreement, as applicable.
1.2 Order of Precedence.
In the event of a conflict between the terms of your License Agreement or Service Agreement, as applicable, the terms of such agreement will take precedence over the terms set forth in these Terms.
“Confidential Information” means any information marked or otherwise identified in writing by either you or us as proprietary or confidential or that, under the circumstances surrounding the disclosure, should be known to constitute proprietary or confidential information. Confidential Information of both parties shall include, without limitation, any amounts paid under, and the terms of, the Agreement, as well as information regarding either party’s business, strategies, plans, suppliers, clients, finances, business plans, product development, technology, and software. For the avoidance of doubt, BrightBytes’ Confidential Information shall include the proprietary aspects, designs, and features of the Applications and the Clarity Platform.
2.2 Duty of Confidentiality.
Neither party will use the other’s Confidential Information without the other’s written consent as expressly permitted in the Agreement except for the purpose of exercising its rights or carrying out its obligations under the Agreement. Each party will disclose the other’s Confidential Information to its employees, agents, representatives, and consultants only on a need-to-know basis and subject to reasonable confidentiality obligations on such persons. Each party will protect the other’s Confidential Information using the same degree of care, but no less than reasonable care, to prevent the unauthorized use or disclosure of such Confidential Information.
The obligations set forth in this Section 2 will not apply to any information that: (i) was previously known to either party free of any obligation of confidentiality; (ii) is or becomes publicly available other than by means of unauthorized disclosure by either party; or (iii) is required to be disclosed pursuant to statute, regulation, or order of a court.
2.4 Remedies for Breach.
The receiving party agrees that the disclosing party will be entitled to equitable relief, including injunction and specific performance, in the event of any breach or threatened or intended breach of the Agreement. Such injunctive relief shall not be the disclosing party’s exclusive remedy for any breach of the Agreement, but will be in addition to all other remedies available at law or in equity.
Representations and Warranties; Disclaimers
3.1 Mutual Representations and Warranties.
Each party hereby represents, warrants, and covenants that: (i) it has full authority to enter into the Agreement; and (ii) the Agreement shall constitute a valid and binding obligation on such party, enforceable in accordance with the terms of each.
3.2 Limited Warranty by BrightBytes.
BrightBytes hereby warrants that the Applications and the Clarity Platform will perform substantially in accordance with its documentation or specifications. The foregoing warranty shall not apply to performance issues of the Applications and the Clarity Platform: (i) caused by factors outside of our reasonable control; (ii) that result from any actions or inactions of you or any third parties; or (iii) that result from your data structure, operating environment, or equipment.
3.3 Limited Warranty by You.
You hereby represent and warrant that you are the owner of or otherwise have the right to use and provide all materials furnished or licensed by you to us in connection with the Agreement, and that such materials do not now and will not at any relevant time infringe upon any third-party’s intellectual property rights.
3.4 Disclaimer of Warranties.
EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN THIS SECTION 3, BRIGHTBYTES AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE APPLICATIONS, THE CLARITY PLATFORM, OR ANY OTHER MATERIALS OR SERVICES PROVIDED. BRIGHTBYTES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT: (i) THE USE OF THE APPLICATIONS, THE CLARITY PLATFORM, OR ANY SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (ii) THE APPLICATIONS OR THE CLARITY PLATFORM OR ANY MATERIALS OR SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (iii) ERRORS OR DEFECTS WILL BE CORRECTED; (iv) THE APPLICATIONS, THE CLARITY PLATFORM, OR THE SERVER(S) THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (v) THE APPLICATIONS, THE CLARITY PLATFORM, OR ANY MATERIALS OR SERVICES WILL BE FREE FROM PROBLEMS ARISING FROM LIMITATIONS, DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM THE UNAVAILABILITY OF, OR LACK OF PERFORMANCE BY THIRD-PARTIES NECESSARY FOR PROVIDING, THE APPLICATIONS, THE CLARITY PLATFORM, OR ANY MATERIALS OR SERVICES. THE APPLICATIONS, THE CLARITY PLATFORM, AND OTHER MATERIALS AND SERVICES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED BY BRIGHTBYTES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Limitations of Liability
4.1 Indirect Damages Waiver.
EXCEPT WITH RESPECT TO LIABILITY ARISING FROM BRIGHTBYTES’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BRIGHTBYTES AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, DATA, PROFITS, GOODWILL, OR OTHER ECONOMIC ADVANTAGE, EVEN IF BRIGHTBYTES HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, IN NO EVENT WILL BRIGHTBYTES OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY SUCH DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE APPLICATIONS, THE CLARITY PLATFORM, OR ANY MATERIALS OR SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE APPLICATIONS , THE CLARITY PLATFORM, SERVICES, OR ANY CONTENT OBTAINED FROM OR THROUGH THE APPLICATIONS OR THE CLARITY PLATFORM
4.2 Liability Cap.
IN NO EVENT WILL BRIGHTBYTES’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY RECEIVED BY BRIGHTBYTES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM UNDER THESE TERMS AND AN APPLICABLE SERVICE OR PARTNERSHIP AGREEMENT (AND IN THE CASE OF A PARTNERSHIP AGREEMENT, SUCH AMOUNTS WILL BE NET OF PAYMENTS TO PARTNER).
5. 1 General.
Certain of the Applications may allow you or your users to post content such as profile information, comments, questions, articles, and other content or information (any such materials you submit, post, display, or otherwise make available on the Applications or Clarity Platform, “User Content”). We claim no ownership rights over User Content created, uploaded, or transmitted by you. The User Content you create remains yours; however, by sharing the User Content through the Applications, you agree to allow others to view, edit, and share your User Content in accordance with this Agreement. However, BrightBytes may, in its sole discretion, remove any User Content shared via the Applications.
5.2 Restrictions on User Content.
You agree that neither you nor your users will post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. BrightBytes may reject or remove any User Content that we believe, in our sole discretion, violates these provisions.
5.3 Your Representations and Warranties Regarding User Content.
In connection with User Content, you affirm, represent, and warrant the following:You have the written consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use. Your User Content and BrightBytes’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights. BrightBytes may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise. To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
We take no responsibility and assume no liability for any User Content that you or your users upload, post, send, or otherwise transmit via the Applications. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, presents health risks, or may otherwise be unsuited to your purpose, and you agree that BrightBytes shall not be liable for any damages you allege to incur as a result of your User Content.
5.5 User Content License Grant.
By posting any User Content via the Applications, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to BrightBytes a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Applications and BrightBytes’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Applications (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Applications a non-exclusive license to access your User Content through the Applications, and to use, reproduce, distribute, display and perform such User Content to the extent permitted through the functionality of the Applications and under this Agreement.
Because we respect artist and content owner rights, it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Applications and the Clarity Platform, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Applications or the Clarity Platform;
- Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agents, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
6.2 Submission Information.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Address: 490 2nd St., Ste. 302
San Francisco, CA 94107
Telephone: (877) 433-4036
6.3 Knowing Misrepresentations.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
6.4 Not Legal Advice.
Please note that this procedure is exclusively for notifying us and our affiliates that your copyrighted material has been, or may have been, infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
6.5 Termination Policy.
In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Applications and the Clarity Platform and terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
7.1 Independent Contractors.
The relationship between you and BrightBytes under the Agreement is that of independent contractors only. Nothing in this Agreement will be construed so as to constitute a partnership, joint venture, or agency relationship. Neither party will have any power or authority to bind the other in any transaction with a third-party. Unless otherwise expressly agreed by the parties, the services rendered hereunder shall be on a nonexclusive basis and the party rendering them shall be free to accept other engagements at all times.
All notices, requests, claims, demands, and other communication under this Agreement may be delivered by any method chosen by the sender that positively establishes legally valid and admissible evidence of actual receipt by the named recipient. The sender shall bear the burden of establishing delivery with respect to the method chosen.
7.3 Integration; Modifications; Severability
This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all other oral or written representations and understandings. Any additions or modifications to this Agreement must be made in writing and must be signed by the authorized representatives of both parties. If any provision of this Agreement is determined to be invalid or unenforceable, the remainder shall be enforceable to the maximum extent possible.
Neither party may assign or transfer this Agreement without the prior written consent of the other party, except that either party may assign this Agreement without consent in connection with a merger, consolidation, restructuring, or sale of all or substantially all of its equity, business, or assets to which this Agreement relates.
7.5 Governing Law.
This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles. Each party hereby expressly and irrevocably consents to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief under this Agreement, or otherwise arising under or by reason of this Agreement.
Neither the waiver by either party of a breach of or a default under any of the provisions of this Agreement, nor the failure of either party, on one or more occasions, to enforce any of the provisions of this Agreement, or to exercise any right or privilege hereunder will thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any of such provisions, rights, or privileges hereunder.
7.7 Compliance with Laws.
Each party will comply with all federal, state, and local laws, rules, and regulations, as amended from time to time, applicable to such party’s performance of its obligations under this Agreement, including all applicable export laws, rules, and regulations of the United States and other applicable jurisdictions, and those related to data privacy.
7.8 Force Majeure.
Neither party will be liable for any failure of performance hereunder or for damages caused by any delay or failure to perform hereunder if performance is made impracticable or impossible due to any occurrence beyond its control, including without limitation: acts of God, fires, floods, wars, riots or civil disorders, acts of a public enemy, sabotage, accidents, enactment or act of any government or governmental instrumentality (whether federal, state, local, or foreign, and whether valid or invalid), failure of technical facilities, and any other occurrence which would have a material adverse impact on a party’s ability to perform under this Agreement which is not reasonably within such party’s control.
7.9 Exclusion for Official Use.
If you are a federal, state, or local government entity in the United States using the Applications or Clarity Platform in your official capacity and legally unable to accept the controlling law, jurisdiction, or venue clauses above, then those clauses do not apply to you. For such U.S. federal government entities, the Agreement and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of California (excluding choice of law).
These Terms were last modified on July 28, 2014
The Following Additional Terms Apply Only to Our Early Warning and Intervention Modules
Student Data. If you are a school, school district, or related entity or other organization that will be providing BrightBytes access to Student Data (as defined below), you authorize BrightBytes to access your student information systems (“SIS”) or receive Student Data or other information via SIS, Secure File Transfer Protocol (“SFTP”), or other secure transfer method for the purpose of providing the Applications. “Student Data” is any information (in any format) that is directly related to an identifiable current or former student that is maintained by a school, school district, or related entity or organization, or us. Student Data may include “educational records” as defined in the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232(g).
- BrightBytes’s Access. You authorize BrightBytes to access or collect Student Data and shall facilitate a reasonable method for BrightBytes to access the information stored in your SIS or collect data and Student Data through other secure transfer methods. BrightBytes shall access and process Student Data solely for the purposes of providing the Applications and related services, as an outsourced institutional function pursuant to FERPA 34 CFR Part 99.31(a)(1). As between BrightBytes and you, you own all right, title, and interest to all Student Data you provide or otherwise make available to us, and BrightBytes does not own, control, or license such Student Data, except so as to provide the Applications and related services described herein. You acknowledge and agree that, as between the parties, you are solely responsible for any and all Student Data, whether provided by you, students, or any other third-party. In the event of disclosure of or access to personally identifiable Student Data by an unauthorized party, BrightBytes will promptly notify you and will use reasonable efforts to cooperate with your investigation of the incident; and if such incident triggers any third party notice requirements under applicable laws, you agree that as the owner of the Student Data, you will be responsible for the timing, content, cost and method of any such notice and compliance with such laws.
- Third-Party Access. By submitting Student Data to BrightBytes, you consent to allow BrightBytes to provide access to Student Data to its employees and to certain third party service providers that have a legitimate need to access such information in connection with their responsibilities in providing the Applications and related services. BrightBytes and its employees, subcontractors, service providers, or agents involved in the handling, transmittal, and processing of Student Data will be required to maintain the confidentiality of such data that includes personally identifiable information. BrightBytes will maintain access log(s) that record all disclosures of or access to Student Data within its possession, and will provide copies of an access log(s) to you upon request.
- Use of Student Data. By submitting Student Data or other information to BrightBytes, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to BrightBytes a non-exclusive, royalty-free, worldwide license during the term of the Agreement to use, transmit, distribute, modify, reproduce, display, and store the Student Data solely for the purposes of (i) providing the Services as contemplated in these Terms, and (ii) enforcing its rights under the Agreement. For clarity and without limitation, BrightBytes shall not use Student Data to engage in targeted advertising.
- Anonymized Data. You agree that BrightBytes may collect, analyze, and use data derived from Student Data, including de-identified, aggregated or anonymized Student Data, as well as data about your, and other users’ access and use of the Applications and the Clarity Platform, for purposes of operating, analyzing, improving, or marketing the Applications, the Clarity Platform, and any related services. If BrightBytes shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from Student Data, such data will be aggregated or anonymized to reasonably avoid identification of a specific school or individual. By way of example, BrightBytes may: (i) track the number of school administrators on an anonymized aggregate basis as part of BrightBytes’s marketing efforts to publicize the total number of users of the Applications and the Clarity Platform, (ii) analyze aggregated usage patterns for product development efforts, or (iii) use anonymous data derived from de-identified Student Data in a form which may not reasonably identify either a particular individual, educational entity or school, to develop further analytic frameworks and application tools. You further agree that BrightBytes will have the right, both during and after the Term of this Agreement, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data.
- Data Retention and Deletion Requests. You may request that BrightBytes delete or retrieve your Student Data in BrightBytes’s possession at any time by providing such a request in writing, which request BrightBytes shall then comply with in a commercially reasonable time not to exceed (2) two weeks. If you request that BrightBytes retrieve Student Data, BrightBytes will provide you with a copy of all Student Data that was processed during the Term. For clarity, BrightBytes will continue to maintain a copy of such data for our records until the end of the Term of the Agreement or until we receive a deletion request. BrightBytes is not required to delete or provide to you any Student Data that has been de-identified, anonymized and/or aggregated, or any data that has been derived from Student Data, so long as the data is maintained in a form, which could not reasonably identify any particular school, educational entity, or individual. Upon termination of the Term of this Agreement, BrightBytes will automatically delete or de-identify all Student Data within 30 days from the end of the Term unless you submit a request to retrieve such data within that time frame.
- Change of Control. By submitting Student Data to BrightBytes, you consent to allow BrightBytes to transfer Student Data to a new provider in the event that BrightBytes sells, divests or transfers the business or a portion of the business, provided that the new provider has agreed to data privacy standards no less stringent than those set forth in this Agreement. We may also transfer personal information – under the same conditions – in the course of mergers, acquisitions, bankruptcies, dissolutions, reorganizations, liquidations, similar transactions or proceedings involving all or a portion of our business.
These terms were last updated on October, 19 2016