Last Modified: April 2014
License Grants. Subject to the terms and restrictions herein, Brainshark hereby grants you a non-exclusive, non-transferable, non-sublicensable license to access and use the Services, including the underlying software proprietary to, or licensed by, Brainshark (in object code format only) (the "Software"), for the limited purposes set forth in Section 2 ("Use of Services") and subject to the restrictions set forth in Section 3 ("Restrictions").
Use of Services. (a) You may access and use the Services and Software solely for the purposes of (i) authoring digital content (each a "Presentation") (ii) viewing and sharing Presentations; and/or (iii) using other features and functionality made available to you from time to time. Presentations may include information, data, text, music, sound, photographs, graphics, video, messages and/or other materials owned by you or licensed to you by third-party content providers;
Restrictions. You agree that you will not:
(a) share your logon ID, user name or password with any other party;
(b) use the Services for commercial purposes unless you are a paying customer;
(c) use the Services in a way intended to improperly avoid incurring fees or exceeding usage limits;
(d) copy, distribute, sell, resell, give away, or provide access to the Software or Services to third parties or the general public, including, without limitation, as an application service provider, service bureau or hosting services provider;
(e) sell or provide access to Presentations for a fee except under the terms of a separate agreement with Brainshark;
(f) rent, lease, loan, or time-share Presentations or the use of, or access to, the Services;
(g) copy, modify, adapt, reverse-engineer or create derivative works of the Software;
(h) use the Services to upload, post, email or otherwise transmit any content or material that is unlawful, harmful, threatening, abusive, harassing, tortuous, vulgar, indecent, obscene, pornographic, defamatory, invasive of another's privacy or rights of publicity, hateful, or racially, ethnically or otherwise offensive or objectionable, harmful to minors, infringing of another's proprietary rights, including, without limitation, copyrights, trademarks, patents and trade secrets, or damaging, corruptive or otherwise in any way harmful to the Services such as but not limited to viruses, including any software, hardware or services associated with the Services;
(i) use the communication systems available with the Services (e.g., posting comments, email) to further or make available any unsolicited or unauthorized advertising or promotional materials such as junk mail, spam, chain letters, pyramid schemes or any other form of abusive commercial solicitation; or
(j) harvest or collect personally identifiable information from the Services for use in any manner that violates governmental regulations.
(k) Non-public personal information (NPPI) is prohibited from Customer Content. Violations brought to Brainshark's attention will result in suspension of the Customer Services until Customer has deleted the prohibited Customer Content. The resumption of the Customer Services or termination of the Customer Services due to NPPI content violation(s) are at Brainshark's discretion.
Ownership and Protection of Content and Intellectual Property.
a) Brainshark Intellectual Property. Brainshark or Brainshark's licensors retain all ownership of, and intellectual property rights in, the Software and the Services. Except for the limited license granted to you herein, you have no right, title or interest in the Software or the Services. All rights not expressly granted herein are reserved to Brainshark, including the right to charge a fee for access or use of the Services;
(b) Intellectual Property in Presentations. ownership of, and intellectual property rights in, any unmodified Presentation, are owned exclusively by the publisher of such Presentation. Any permitted modification of the Presentation is owned by the party making the modification to the Presentation, provided ownership of the unmodified Presentation remains with the publisher. You may not remove any identifications, attributions, copyright notices, or other notices or proprietary restrictions contained in any Presentation;
(c) Indemnity Obligations. You will defend, indemnify and hold harmless Brainshark, Brainshark's subsidiaries, affiliates, officers, employees, stockholders, agents, co-branders or other partners from and against any claim or demand, made by any third party, arising from or related to (i) the Presentation(s) you create, publish or share using the Software or Services or (ii) your general use of the Software or Services, and will pay all costs and damages including reasonable attorneys' fees incurred as a result of such claim.
Terms Applicable to Learning Providers. If you are an approved Learning Provider and provide Presentations on the myBrainshark site designated by you as "Learning Content," you affirm such content is educational in nature and oriented toward a business audience.
Content of Presentations; Other Content. You acknowledge that Brainshark does not pre-screen, monitor or endorse any Presentations or other content or materials uploaded by users and makes no claims regarding their accuracy or content. Brainshark or its designees have the right (but not the obligation) in their sole discretion to refuse, remove or re-categorize any Presentations or other content. For those users that are accessing the Services at no-charge ("Free User"), if you do not access or use the Website(s) for a period of six (6) months, your content, Presentations, and/or materials uploaded may be removed.
Availability of the Services. Brainshark will use commercially reasonable efforts to ensure that the Services are accessible via the internet twenty-four (24) hours a day, seven (7) days a week for all paying customers.
Use and Fees. Free Users may use the Services for personal, non-commercial purposes only. The Services are provided for Free Users solely at Brainshark's discretion, and Brainshark reserves the right to place limits on the use including, but not limited to, the number of Presentations which can be created, the amount of audio which can be recorded, the amount of video that can be uploaded, the amount of storage you can consume, and the frequency of Presentation viewing. Certain premium services may be available for a fee, including subscription upgrades. For monthly subscription upgrade purchases, Brainshark will securely charge your credit card at the initial time of purchase for the prorated portion of the current month (days remaining through the end of the current month). Then, at the beginning of each subsequent month, Brainshark will bill your credit card for monthly subscription fees corresponding to your subscription plan. You may cancel your subscription at any time by choosing the cancellation option within your account, and your subscription will terminate at that time. For annual subscription upgrade purchases, Brainshark will securely charge your credit card at the initial time of purchase for twelve (12) months of service in advance. Then, at the beginning of each annual term, Brainshark will bill your credit card for annual subscription fees corresponding to your subscription plan. You may cancel your subscription at any time by choosing the cancellation option within your account, and your subscription will terminate at that time. Brainshark does not issue refunds for charges incurred.
Disclaimer of Warranties. THE SOFTWARE, SERVICES AND THE PRESENTATIONS ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. BRAINSHARK DOES NOT WARRANT (I) THE RESULTS THAT MAY BE OBTAINED BY USING THE SOFTWARE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) AN UNAUTHORIZED PERSON WILL NEVER GAIN ACCESS TO THE CUSTOMER CONTENT OR PRESENTATIONS, (III) THAT THE SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR (IV) THE ACCURACY, ADEQUACY OR COMPLETENESS ANY PRESENTATION.
Limitation of Liability. BRAINSHARK SHALL NOT BE LIABLE, WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT, TORT OR BASED ON ANY OTHER LEGAL THEORY, IN ANY WAY TO YOU FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT.
BRAINSHARK'S MAXIMUM LIABILITY FOR ANY DAMAGES, REGARDLESS OF FORM OF ACTION, SHALL NOT EXCEED THE LICENSE FEES, IF APPLICABLE, ACTUALLY PAID BY YOU TO BRAINSHARK FOR USE OF THE SERVICES, OR OTHER AMOUNTS ACTUALLY PAID BY YOU PROCURING PRESENTATIONS USING THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVEN RISE TO SUCH LIABILITY.
Termination of Use. You may terminate your use of the Services at any time by terminating any agreements, if applicable, between you and Brainshark associated with your use of the Websites and/or discontinuing your access of the Services and destroying your access credentials (e.g., logon ID, password). No liabilities (including but not limited to refunds or credits for any fees paid for premium services) will be incurred by Brainshark if you terminate your use of the Services.
Notice of Copyright Infringement. If you believe in good faith that (i) a Presentation or other content or material on the website infringes your copyrights, or (ii) any such notice of infringement was made falsely or mistakenly against your Presentation or other content or material, you may provide notice to Brainshark's Designated Agent for Notice of Infringement identified below. Brainshark, Inc.
Attention: Brainshark, VP of Product Management
130 Turner Street
Building 1, Suite 100
Waltham, MA 02453 USA