When used in this Agreement with the initial letters capitalised, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of Subscriber or its Administrators within the Services.
Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
Administrator: means an individual authorised to use a Service through Your Account as an administrator, presenter, or support staff as identified through a unique login.
Agreement: means the Master Subscription Agreement together with any and all Order Forms agreed to by You, and any Additional Features requested by You, as well as any Consulting Services SOW, as well as Schedules 1 and 2 to this Agreement, and all as may be amended or updated from time to time pursuant to section 12.3.
API: means the application programming interfaces developed and enabled by BrightSword that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests and the application development API that enables the integration of the Services with other web applications.
Associated Services: means products, services, features and functionality designed to be used in conjunction with the Services but not included in the Service Plan to which You subscribe, including, without limitation, integrations and applications created or developed by BrightSword or its Affiliates and made available to You which will be governed by this Agreement unless BrightSword otherwise communicates a different agreement to You at the time of Your deployment of or access to the integration or application. For avoidance of doubt, none of the Services or any other product, service, feature or functionality that is expressly stated to be governed by any alternative license, agreement or terms shall be deemed an Associated Service.
Beta Services: means a product, service or functionality provided by BrightSword that may be made available to You to try at Your option for a limited time, for no Subscription Fee, and which is clearly designated as a beta, pilot, limited release, for non-production, and for early access, evaluation or by a similar description.
Confidential Information: means all information disclosed by You to BrightSword or by BrightSword to You which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to BrightSword’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
Consulting Services: means consulting and professional services (including any training, success or implementation services) provided by BrightSword or its authorised subcontractors as indicated on an Order Form or other written document such as a statement of work “SOW”, as defined below, and which unless agreed otherwise in writing, shall include the terms set out in Schedule 1 to this Agreement.
Consulting Fees: means fees for Consulting Services as may be agreed in writing between us from time to time.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by BrightSword to You in the applicable BrightSword help centre(s) and documentation websites; provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
Deployed Associated Services: has the meaning as given in the definition of “Services” in this section 1.
End-User: means any natural person other than Administrators with whom Subscriber or its Administrators interact using a Service or whom Subscriber or its Administrators permit or allow to use the Services.
Fees: means the Subscription Fees; any Consulting Fees; Special Support Fees and any other costs or charges which We are entitled to invoice You for under the express terms of this Agreement.
Order Form: means any of Our generated service order forms executed or approved by You with respect to Your subscription to a Service, which form may detail, among other things, the number of Administrators authorised to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service.
Party: means a party to this Agreement including their successors and permitted assigns, but subject to sections 2.1 (Affiliates) and 17 (Rights of Third Parties).
Payment Agent: means BrightSword or a payment agent designated by BrightSword.
Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
Personnel: means employees and/or non-employee service providers and contractors of the BrightSword Group engaged by the BrightSword Group in connection with performance hereunder.
Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction, subject always to Schedule 2 to this Agreement.
Service(s): means the products and services that are ordered by You online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, updates, API, Documentation, and all applicable Associated Services that You have purchased or deployed or to which You have subscribed (“Deployed Associated Services”) that are provided under this Agreement. “Services” exclude Third Party Services as that term is defined in this Agreement and Associated Services that are not provided under this Agreement. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, Administrators and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data.
Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services to which You subscribe.
Site: means a website operated by the BrightSword Group, including www.edujournal.com, as well as all other websites that the BrightSword Group operates.
Software: means software provided by BrightSword (either by download or access through the Internet) that allows Administrators or End-Users to use any functionality in connection with the applicable Service.
Subscriber, You, Your: means you Our customer, being the Party other than BrightSword signing this Agreement or otherwise agreeing to being bound by its terms.
Subscription Term: means the period during which You have agreed to subscribe to the Service, and if no particular term has been agreed in writing between You and Us, then the term shall be month to month (with each month being a month in New Zealand).
Special Support Fees: means fees at Our standard support rates as published on the Site, which We may, at Our discretion, invoice to You from time to time in respect of support Services requested by You from time to time and which either could have been addressed by You by reading the Documentation, or which are outside the scope of the Documentation and do not relate to any breach on Our part, or as explained in section 2.11.
Subscription Fees: means the fees, as published on the Site, which We charge You relating to Your access to and usage of the Services and calculated based on the number of Your Administrators, registration usage by You, Your Administrators, and End-Users in any given month, any optional recurring extras You have purchased, and each based on the Service Plan You have selected and agreed to, and excludes all other types of Fees.
Third Party Services: means third party products, applications, services, software, networks, systems, directories, websites, databases and information obtained separately by You which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Third Party Services which may be integrated directly into Your Account by You or at Your direction.
“We,” “Us” or “Our”: means BrightSword as defined below.
BrightSword: means BrightSword Technologies Pte Ltd, a New Zealand company, or any of its successors or assignees.
BrightSword Group: means BrightSword Technologies Pte Ltd, a New Zealand company together with all its Affiliates.