Backlight Terms and Conditions
Backlight Parent Corporation (“Backlight”) offers, through its subsidiaries (each a “Vendor”), various software-as-a-service (SaaS) platforms (each a “Software Platform”). End user customers (each a “Customer”) may purchase the right to access and use a Software Platform by: (a) executing a service order with the applicable Vendor (an “invoiced customer”); or (b) by creating an online account and completing a purchase on the Vendor’s website (a “self-serve customer”). In each case, the Customer agrees that these Backlight Terms and Services (“Agreement”) will govern its purchase, its use of the Software Platform, and the parties’ relationship.
1. Software Platform.
1.1 Access. Subject to the terms hereof, the Customer and its authorized personnel (“authorized users”) shall have the right to access and use the Software Platform during the Service Period (defined in Section 4.1 (Term) below) for the Customer’s business purposes in accordance with the documentation supplied by the Vendor on its website concerning usage of the Software Platform (the “Documentation”). The Vendor shall provide access to the Software Platform via online means.
1.2 Software License. To the extent that the Vendor provides any downloadable software in connection with the Software Platform, the Customer shall have, subject to the terms hereof, a limited, non-exclusive, non-transferrable, and revocable license to use such software during the Service Period for the Customer’s internal business purposes in accordance with the Documentation.
1.3 Functionality. The Software Platform shall provide the functionality applicable to the Customer’s subscription plan. The Vendor reserves the right to make changes to the Software Platform, including changes to its appearance, interface, and features, provided that the Vendor does not materially decrease the promised functionality during the Customer’s initial subscription period (if applicable).
1.4 No Malicious Code. The Software Platform shall be free of any malicious software, code, program, or script including viruses, worms, Trojan horses, ransomware, and spyware (“Malicious Code”).
2. Customer Obligations.
2.1 User Accounts. The Customer shall designate authorized users who will access the Software Platform on its behalf. The Customer shall be responsible for all authorized users’ activities. The Customer will (a) ensure that only authorized personnel have access to the Software Platform; (b) comply with any applicable seat license restrictions; (c) ensure that authorized users keep account credentials secure and follow reasonable security instructions provided by the Vendor; and (d) immediately notify the Vendor if it becomes aware of any unauthorized access.
2.2 Prohibited Conduct. In using the Software Platform, the Customer will not (a) introduce any Malicious Code; (b) reverse engineer or decompile any code; (c) tamper with, circumvent, or otherwise disrupt any computer, server, network, code, process, application programming interface (API), or technical measure; (d) resell, rent, lease, sublicense, distribute, export, or otherwise transfer the Software Platform to third parties; (e) create derivative works based on the Software Platform; (f) access or use the Software Platform for the purpose of creating a competing product; or (g) use the Software Platform to commit any illegal act.
2.3 Customer Content. The Customer may upload or submit media assets, including videos, images, sound recordings, and text (the “Customer Content”) to the Software Platform. The Customer Content may not violate any law, infringe upon any third party’s rights, or be pornographic. The Vendor shall have a limited, non-exclusive, worldwide right to use, copy, distribute, transmit, publicly perform and display, and adapt the Customer Content as instructed by the Customer via the Software Platform and to otherwise perform this Agreement.
2.4 Restricted Data. Unless the parties agree otherwise in a signed agreement, the Customer will not upload or submit to the Software Platform: (a) protected health information subject to the Health Insurance Portability and Accountability Act (HIPAA); (b) “sensitive data” as that term is defined under the EU General Data Protection Regulation (GDPR); or (c) biometric information.
2.5 Age Requirements. The Software Platform is not intended for use by persons under the age of 16. The Customer is responsible for ensuring that its authorized users are at least 16 years old.
3. Subscriptions, Billing and Payment.
3.1 Invoiced Subscriptions. Invoiced customers who purchase subscriptions shall pay the subscription fees stated in the service order for the initial subscription period. If no billing cycle is specified, the Customer will pay the subscription fees annually, up front. Except as set forth in the service order, subscriptions automatically renew for successive twelve (12) month periods unless and until either party provides thirty (30) days’ written notice of non-renewal before the beginning of a renewal period. Upon renewal, the Vendor may automatically increase subscription fees for invoiced customers by up to seven percent (7%), and the Customer agrees to pay such fees for the applicable renewal period.
3.2 Self-Serve Subscriptions. Self-serve customers who purchase subscriptions shall pay the subscription fees stated on the website purchase page at the time of purchase for the initial subscription period. Self-serve subscriptions automatically renew for successive periods equal to the length of the original subscription period unless and until the Customer cancels the subscription through the means provided in the Software Platform. Cancellation will not affect the current subscription period, but will prevent the subscription from renewing. Upon renewal, the Vendor may automatically increase fees for self-serve subscriptions up to its then-current published fees, and the Customer agrees to pay such fees for the applicable renewal period.
3.3 Credits. Certain Software Platforms may allow customers to purchase credits that can be applied to consume certain Software Platform services instead of (or in addition to) a subscription. In such cases, the issued credits are non-refundable (except as set forth herein), non-transferrable, have no monetary exchange value, and expire within twelve (12) months of issuance. Credit prices are subject to change at any time, as are the credit amounts required to consume Software Platform services.
3.4 Usage-based Fees and Add-on Fees. Usage-based fees and add-on fees will be charged when the Customer exceeds a usage limit applicable to their plan or purchases optional features. These fees are due upon invoice and may be charged to the Customer’s payment method on file (if applicable). Usage-based fees and add-on are listed in the Vendor’s website and are subject to change.
3.5 Payment. Invoiced customers must pay invoices within thirty (30) days unless the invoice states otherwise. Upon request, invoiced customers must provide a payment method and authorize the Vendor to charge this payment method if the Vendor fails to pay an invoice. Self-serve customers hereby authorize the Vendor to charge their payment method on file for all fees.
3.6 Disputes. To dispute a charge, the Customer must provide written notice of the dispute within thirty (30) days after notification of the charge. Disputing a charge does not relieve the Customer of its obligation to pay the charge. If the Vendor determines that the Customer has overpaid, it will promptly refund any overpayment.
3.7 Collections. If the Vendor terminates this Agreement for the Customer’s breach (including non-payment), the Vendor shall be entitled to collect the full amounts due from the Customer through the end of the Service Period. In addition, the Vendor may charge interest at a rate of one and a half percent (1.5%) per month or the maximum permitted by law (whichever is greater) on unpaid and undisputed invoices and shall be entitled to its reasonable collection costs (including attorneys’ fees) and any amounts chargeable under applicable law.
3.8 Taxes. The fees charged by the Vendor do not include any taxes. The Customer is solely responsible for paying any applicable taxes, including sales and value-added taxes, as well as providing any evidence of exemptions. The Customer may not withhold any amounts payable to the Vendor without the Vendor’s prior written consent. In the event the Customer withholds any amounts, the fees chargeable to the Customer shall automatically be increased such that the Vendor receives the full amount of the original fees.
4. Term and Termination.
4.1 Term. This Agreement will continue so long as there is an active Service Period or so long as the Customer has an active online account with the Vendor (the “Term”). The “Service Period” refers to (a) for customers with subscriptions, the Customer’s then-current subscription period; or (b) for customers who purchase credits, the date the last purchased credits expire.
4.2 Termination for Breach; Cure. Either party may terminate this Agreement if the other party breaches any of its terms, provided that the non-breaching party shall first provide, upon written notice, a fifteen (15) day cure period, assuming that the breach is capable of being cured.
4.3 Suspension. The Vendor may limit or suspend the Customer’s access to the Software Platform if the Customer (a) fails to pay any invoice within thirty (30) days of receipt; (b) willfully or recklessly engages in any of conduct prohibited hereunder.
4.4 Effect of Termination. Upon expiration or termination of this Agreement, (a) the rights licenses granted by the Vendor shall cease; (b) the Customer shall cease using the Software Platform; (c) the Vendor shall delete the Customer Content within a commercially reasonable period of time; and (d) clauses that by their nature survive an expiration or termination shall continue.
5. Intellectual Property Rights.
5.1 Reservations. As between the parties: (a) the Vendor owns all right, title, and interest in and to the Software Platform and all associated intellectual property, including domains, websites, media assets, APIs, and downloadable software; and (b) the Customer owns all right, title, and interest in and to the Customer Content. Except as otherwise provided herein, neither party assigns any ownership interest in its intellectual property and each party reserves all rights with respect to the same.
5.2 Feedback and Marketing. The Vendor may use, without compensation or credit, any feedback or suggestions that the Customer provides about improving the Software Platform. The Vendor may use the Customer’s name and logos in listing its customers in marketing materials.
6. Data Privacy. The Vendor’s privacy policy, as posted on its website, governs the collection and processing of user data relating to the Software Platform.
7. Confidentiality.
7.1 “Confidential Information” means non-public business information belonging to either party, but does not include information in a recipient’s possession that (a) that has become publicly known through no fault of the receiving party; (b) is independently and lawfully developed or obtained without access to the other party’s Confidential Information; (c) was within the receiving party’s possession before disclosure; or (d) was received from a source other than the disclosing party (without any breach of any confidentiality obligation).
7.2 Non-disclosure Obligations. Each party shall safeguard (using reasonable means) and not disclose the other party’s Confidential Information to another party except (a) to perform its obligations hereunder (including, in the Vendor’s case, to provide the Software Platform as directed by the Customer); (b) to its directors, officers, employees, affiliates, agents, attorneys, and auditors (provided that such persons are under confidentiality obligations no less strict than those here); or (c) as required by law, provided that a party shall promptly provide notice of any legal request to the other party.
8. Representations and Warranties. Each party represents and warrants that (a) it has the right to execute and perform this Agreement; (b) it is not located in a country or region that is subject to comprehensive sanctions by the US or EU and will not use the Software Platform in such countries or regions; and (c) neither it nor any person controlling the party is named on any US or EU list of restricted parties.
9. Disclaimers. Except as otherwise expressly provided herein, the Vendor provides the Software Platform on an “AS IS” and “AS AVAILABLE” basis and makes no representations or warranties of any kind including warranties as to merchantability, fitness for a particular purpose, or non-infringement, nor does the Vendor warrant that the Software Platform will be free of interruptions or errors.
10. Indemnification and Defense.
10.1 By the Vendor. The Vendor shall indemnify, defend, and hold harmless the Vendor and its directors, officers, and employees from and against any third party demand, claim, or lawsuit asserting that the Software Platform infringes any third party’s intellectual property rights.
10.2 Patent Claims. Where the claim asserts patent infringement, the Vendor may, at its expense: (a) procure for Customer the right to continue using the Software Platform as set forth herein; (b) modify the Software Platform to make it non-infringing (while continuing to provide full functionality); or (c) if the foregoing options are not reasonably practicable, terminate this Agreement and refund Customer any unused prepaid fees.
10.3 Limitations. The Vendor will have no indemnification or defense obligation with respect to a claim to the extent (a) caused or aggravated by use of the Software Platform by the Customer in violation of the terms hereof; or (b) the combination, operation, or use of the Software Software by Customer with other applications, products, or services cause the Software Platform to infringe.
10.4 By the Customer. The Customer shall indemnify, defend, and hold harmless the Vendor and its and its directors, officers, and employees from and against any third party demand, claim, or lawsuit asserting that (a) the Customer Content infringes upon any third party’s rights or violates any law; or (b) the Customer has breached its obligations under Section 2.2 (Prohibited Conduct).
10.5 Procedure. A party seeking indemnification and defense must tender must promptly provide notice of the claim to the other party and reasonably cooperate with the other party in defending the claim. The party obligated to provide indemnification and defense shall assume sole defense over the claim at its expense and may settle claims without the other party’s consent unless the settlement agreement would obligate the party in some manner.
11. Limitations on Liability.
11.1 Indirect Liability. To the fullest extent permitted by law, neither party will be liable to the other party for any indirect, special, incidental, consequential, or punitive damages of any nature (including damages for loss of goodwill, lost profits, lost business, lost data, etc.) even if such party knew or should have known of the possibility of such damages.
11.2 Aggregate Damages Cap. To the fullest extent permitted by law, neither party will be liable to the other party for an aggregate amount that exceeds the amounts paid (or payable) by the Customer to the Vendor in the twelve (12) months leading to the initial claim, provided that the foregoing shall not relieve the Customer of any obligations under Section 3 (Subscriptions, Billing and Payment).
11.3 Limitation Period. Any claim, whether for indemnification or direct damages, shall be presented to the other party within twelve (12) months after it arises. If no claim is made within such time, it shall be forever waived.
12. General Terms.
12.1 Independent Contractors. The parties are independent contractors of each other and are not agents, representatives, or joint venture partners.
12.2 Choice of Law and Forum. This Agreement shall be governed by the laws of the State of Delaware (without regard to conflicts of law principles). Any dispute arising out of or relating to this Agreement shall be commenced in the federal or state courts located in New Castle County, Delaware, and the parties submit the exclusive jurisdiction of those courts.
12.3 Force Majeure. Neither party is responsible for failure to fulfill its non-monetary obligations due to an event beyond its control, provided that a party seeking to rely on such an event must act reasonably to mitigate the effects of the event.
12.4 Severability. If a court of competent jurisdiction finally determines that any term hereof is invalid or unenforceable, the remaining terms shall remain in full force and effect, and the invalid or unenforceable term shall be modified in a manner that comes closest to effectuating the parties’ intent.
12.5 Assignment. This Agreement shall be binding upon the party’s successors and permitted assigns. The Customer may not assign, in whole or in part, its rights under this Agreement without the prior written consent of the Vendor.
12.6 Third Parties. Backlight shall have the right to enforce this Agreement on behalf of the Vendor. Except for Backlight, no third party shall have any rights under this Agreement.
12.7 Interpretation. In the event of a conflict between this Agreement and an executed service order, the service order shall prevail, but only as to the extent of the inconsistency. Headings are for convenience only. More specific clauses shall prevail over more general ones. No presumption shall be made against the drafter of any term hereof. No purchase order or other writing presented to the Vendor shall bind the Vendor.
12.8 Entire Agreement. This Agreement (including any executed service order or any document expressly incorporated by reference) contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements and understandings relating thereto.
12.9 Modifications and Waivers. The Vendor may update this Agreement by posting a new version on its website and providing notice by electronic means, provided that the updated agreement will apply on a go-forward basis and may not materially diminish the Customer’s rights. Otherwise, any modifications must be set forth in a writing signed by both parties. No waiver by the Vendor shall be binding unless set forth in a writing signed by the Vendor.
12.10 Electronic Signature; Counterparts. This Agreement (and any service order or amendment) may be signed electronically and in counterparts. In the case of self-serve customers, use of the service after purchase shall be deemed acceptance of this Agreement (and any update thereto).
12.11 Notices. Notices to the Customer may be sent by email to the addresses listed in the service order (for invoiced customers) or in the Customer’s account information (for self-serve customers). Notices to the Vendor shall be sent to legal@backlight.co.