Terms and Conditions
A.“Briostack Office Management Solution” or “Briostack Solution” means the internet-based software application(s) and related website(s) marketed and distributed by Briostack, LLC as Brio (as further defined in the applicable Order Form), as well as any improvements, modifications, releases, updates, upgrades and derivative works of such Briostack Solution.
B. “Service Commencement Date” means the date that the Briostack Solution is designated as being ready for production use, as confirmed by Briostack to Customer in writing. The Service Commencement Date occurs after the Effective Date of the Agreement, once any agreed upon implementation and consulting Services are completed.
C. “Services” means the consulting services provided by Briostack, which may include, but are not limited to, data conversions, customizations, training and other related services (as further defined in separate documentation).
D. “User(s)” or “Authorized User(s)” means any individual person employed by Customer who possesses a valid, unique identification number (“User ID”), username and password (“Password”) with which to access the Briostack Solution. The Customer is required to have a user license for each concurrent user accessing the database.
A. Briostack Solution. Customer acknowledges and agrees that (1) Briostack is the exclusive owner of all right, title and interest in and to the Briostack Solution, the documentation and any deliverables, including, but not limited to, US and international patent, copyright, trademark, trade secret, and trade dress rights, and (2) Briostack owns and hereby retains all right, title, and interest in and to any and all improvements, modifications, releases, updates, upgrades and derivative works of such Briostack Solution.
B. Reference Data. Briostack collects and uses product Reference Data (defined below) for its internal research and development purposes and may disclose Reference Data in an aggregated format that in no way identifies Customer or any particular Authorized User. “Reference Data” means entirely anonymized data not attributable to any Authorized User or member which may include, without limitation, licensed or purchased third party reference data.
C. Customer Data. In order to provide core functionality of the Services such as benchmarks and cost-savings-identification models, Customer hereby grants to Briostack permission during the Term to perform certain processing, transformation, and analytics on Customer data (“Customer Data”) and associated metadata and derivatives thereof alone and together with Reference Data, to derive certain mathematical, derivative, index, scoring, metric, associative, predictive, comparative, statistical, algorithmic, and contextual data therefrom (the “Analytical Data”). Unless otherwise stated in the Order Form, Briostack may use Analytical Data in connection with developing, enhancing, maintaining, supporting, and providing the Service to Customer, Briostack’s other customers, and for Briostack’s own internal purposes, provided that Briostack may not disclose Customer Data to any third party in raw form, or disclose any personal information regarding Authorized Users or members, or identify Customer, Authorized Users or members on an individual basis as the source of such Analytical Data. In the event that the applicable Order Form excludes the foregoing rights, the Services will NOT provide any Analytical Data derived from any other Briostack customers’ use of the Service, e.g. for benchmarking or other purposes.
A. Confidential Information. “Confidential Information” includes any information disclosed by either party to the other and marked or identified as proprietary or confidential, including but not limited to any business or technical information, product plans, designs, costs, product prices (including the pricing under this Subscription Agreement), financial information, marketing plans, business opportunities, personnel, research, development or know-how and Customer Data, and if such is orally disclosed, reduced to writing by the disclosing party within thirty (30) days of such disclosure. “Confidential Information” with respect to Briostack shall also include, without limitation, the Briostack Solution (including methods or concepts utilized therein) and Briostack Trade secrets. The receiving party is liable for all misuse by employees, consultants or other third-parties, of the disclosing party’s Confidential Information or for the use of the disclosing party’s Confidential Information for any purpose not expressly set forth in this Subscription Agreement, including but not limited to developing competitive products.
B. Exceptions. Information will not be deemed Confidential Information hereunder if such information (a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party without the use of any Confidential Information.
C. Uses and Disclosure Restrictions. Each party will not use or permit others to use the other party’s Confidential Information except as otherwise permitted therein and will not disclose such Confidential Information to any third-party, except to those employees and authorized consultants who have a need to know, in order for the party to exercise its rights and fulfill its obligations under this Subscription Agreement. The parties shall maintain adequate processes, including but not limited to, requiring that all employees and consultants be bound by written agreements which contain disclose restrictions at least as protective as those set forth herein. However, each party may disclose the Confidential Information of the other party (a) pursuant to a judicial order or valid subpoena, so long as such party will promptly notify the disclosing party and provide it with an opportunity to preclude or limit such production, or (b) on a confidential basis to its legal or financial advisors.
Subject to the terms and conditions of this Subscription Agreement, including payment of all applicable fees as due, Briostack grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, subscription license(s) to access the Briostack Solution via the internet, strictly for its own internal business operations during the Term of this Subscription Agreement. All rights not expressly granted to Customer by Briostack hereunder are fully reserved.
5. Access and other Use Restrictions.
6. Injunctive Relief.
Customer recognizes that money damages alone would not adequately compensate Briostack in the event of breach by Customer (or Customer’s employees or agents) of Sections 3 and 5 of this Agreement, and Customer therefore agrees that, in addition to all other remedies available to Briostack at law or in equity, Briostack shall be entitled to injunctive relief (including a preliminary injunction) for the enforcement hereof.
7. Backups, Software Maintenance, and other.
A. Backups. Backups of Customer Data are performed each weekday in the evening. Customer may order a one-time backup via secure electronic delivery at any time at the cost of $500.00. Briostack also charges $750.00 to restore data from a previous backup.
B. Overage Charges. Customer may use up to 20GB of total storage per User License. If Customer is using more than 20GB of storage per User License, the Customer will be charged $1.00 per 2GB per month for storage usage in excess of the standard 20GB per User License.
C. Third-Party Costs & Customer Compliance. The Customer may elect to use text notifications, email messaging, or automated phone calls through the Briostack Solution. These services are made available through third-party communication services. Each text sent or received through the Briostack Solution will cost $0.04, each automated phone call placed through the Briostack Solution will cost $0.03 per minute. See Notification Pricing document for more information. See Postal Mail Notification Pricing document for Postal Mail information, color print pricing and additional terms. See Migration Pricing document for pricing and information on additional migration services. In the event Customer requests credit card information be extracted and transferred from the Briostack Solution’s vaulting service, Briostack will incur certain third-party costs to transfer such information, and the Customer will pay $0.25 per credit card that is extracted and transferred from the Briostack Solution’s credit card vault. As these costs originate from third-party service providers, Briostack reserves the right to raise these rates when necessary and without notice.
In the event Customer elects to use text notifications and/or automated phone calls through Briostack Solution, Customer agrees to comply with the Telephone Consumer Protection Act codified as 47 U.S.C. § 227 and all corresponding regulations (collectively, the “TCPA”) by, among other things, obtaining the consent of the end customers receiving such automated text notifications and/or phone calls. Briostack has advised Customer to seek its own legal counsel regarding the TCPA and Customer hereby assumes any and all risk and liability relating to, or arising from Customer’s violation of the TCPA.
D. Customer Indemnification. Customer agrees to defend, indemnify and hold harmless Briostack, its affiliates, employees, officers, agents, managers, members and successors and assigns from all damages and liability including, without limitation, reasonable attorneys’ fees, incurred as a result of (i) a third-party’s use of the Briostack Solution under the Customer’s account, or (ii) any violation of Law (including without limitation any violation of the TCPA) by the Customer or any Customer employee or agent.
E. Software Maintenance and Updates. Briostack will provide Customer with periodic updates and upgrades to the Briostack Solution when such are made commercially available, as part of the subscription, at no additional cost. Briostack may from time to time provide additional services and features which are not included in the subscription and which may be provided at an additional cost. Customer will not be charged for any such additional services or features unless and until Customer agrees to the terms related to such additional services or features.
F. Service Availability. The Briostack Solution may be interrupted from time to time for both scheduled and emergency update and maintenance service. Whenever possible, Briostack will notify Customer in advance via email of the time, date and expected length of time when the Briostack Solution will not be available. It is anticipated that the Briostack Solution will be brought down once a week for a period of up to two (2) hours, for regular maintenance. Whenever possible, in the event that the Briostack Solution become unavailable for an extended period of time due to technical difficulties, Briostack will notify subscribers via email to advise of the status and expected time of resolution.
G. Documents, Templates and Agreements. Customer hereby acknowledges and agrees that the form of Service Agreement or any other Templates, Samples or Default Documents (“Documents”) provided to Customer has been provided by Briostack as a courtesy only. Briostack is under no obligation to update or correct defects or errors in the Documents and provides the Documents “As-Is” and without warranty or guarantee of any kind, including without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement, or that the Documents will be enforceable in the jurisdiction in which Customer uses the Documents or in any jurisdiction whatsoever. Briostack has advised Customer to seek its own legal counsel regarding Customer’s use of the Documents and Customer hereby assumes any and all risk and liability relating to or arising from Customer’s use of the Documents. Notwithstanding the foregoing, Customer, understanding these risks, has determined to use the Documents in connection with the operation of its business and agrees to release Briostack from any and all losses, claims or damages incurred by Customer relating to User’s use of the Documents. Documents and/or Form creation or alteration (including periodic updates, if requested) will cost $150 per occurrence.
Briostack warrants to Customer that during the subscription period, the Briostack Solution will conform in all material respect to the description and/or specifications set forth in Briostack published documentation and/or Order Form, when the Briostack Solution is properly operated. Briostack’s sole and exclusive obligation and Customer’s sole and exclusive remedy under this warranty shall be that Briostack shall be required to use commercially reasonable efforts to promptly modify and/or correct the Briostack Solution so that it conforms in all material respects to the description and/or specifications set forth in Briostack’s documentation. In the event of any material non-conformance reported during the subscription period, Briostack’s sole and exclusive obligation and Customer’s sole and exclusive remedy shall be to obtain error corrections through Briostack’s Maintenance and Update Program as described above, provided that Customer is current with its subscription fees. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR SLAs, AND BRIOSTACK DISCLAIMS ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability.
IN NO EVENT SHALL BRIOSTACK, NOR ITS AGENTS, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OR CORRUPTION OF CUSTOMER DATA, COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES, OR OTHER DAMAGES OF ANY KIND ARISING OUT OF THE OPERATION OF THE BRIOSTACK SOLUTION EVEN IF BRIOSTACK HAS BEEN ADVISED OF THE POSSIBILITY OF PRIOR OCCURRENCE OF SUCH DAMAGES. BRIOSTACK’S MAXIMUM CUMULATIVE LIABILITY FOR DIRECT, ACTUAL AND PROVABLE DAMAGES UNDER THIS SUBSCRIPTION AGREEMENT (REGARDLESS OF THE FORM OF ACTION) SHALL NOT EXCEED THE AMOUNT OF FEES PAID UNDER THIS SUBSCRIPTION AGREEMENT DURING THE PRIOR THREE (3) MONTHS PRECEDING THE CLAIM.
10. Term and Payment Terms.
A. Briostack Solution Subscription Term. The Subscription Agreement is effective on the Effective Date as of the date specified in the Subscription Agreement. The Briostack Solution shall be provided to Customer at the Service Commencement Date (“Initial Term”) and continuing for the term set forth in Description and Pricing. At the completion of the Initial Term, the Subscription Term shall renew automatically for successive twelve (12) month periods (each period a “Renewal Term,” and together with the Initial Term, the “Term”) unless either party gives written notice to the other party of its intent not to renew at least thirty (30) days prior to the end of the Initial Term or then current Renewal Term. Customer understands that prices, except those contained in section 7, are guaranteed during the current term. Pricing for any Renewal Term is subject to change, provided that Briostack provides Customer with written notice of such price change at least sixty (60) days prior to the beginning of the next Renewal Term. The pricing contained in Section 7 is reliant on third-party costs. Therefore, all the prices contained in Section 7 are subject to change without notification.
B. Payment Terms. Payments for recurring fees will be invoiced, in advance, on periodic terms as set forth in the applicable Order Form. Payment in full is due at the time of purchase. Automatic checking account or credit card processing is required for monthly payments, unless other terms are agreed upon. All fees are to be paid in U.S. dollars and, when paid, are non-cancelable, non-contingent and non-refundable. All fees are exclusive of taxes, including but not limited to sales, use, transfer, privilege, excise, VAT and all other taxes and duties. Amounts which are not received by the due date shall be subject to a late fee of one and one-half percent (1.5%) or the highest amount allowed under applicable law, whichever is lower, compounded monthly, commencing from the payment due date. Customer agrees to pay all costs of collection including reasonable attorney’s fees. If Customer is referred to a third party for collection, the remaining balance on the Initial Term or then current Renewal Term shall be immediately due along with late fees, collection fees and reasonable attorney’s fees.
Briostack may turn off the Service and terminate this Subscription Agreement upon written notice if: (a) a bankruptcy proceeding is instituted by or against the Customer which is not dismissed within sixty (60) days from the commencement thereof, or (b) the Customer breaches any of its obligations under this Agreement, including its obligation to pay amounts due hereunder, and Customer fails to cure said breach within thirty (30) days from the date of Briostack’s written notice. Upon any termination or expiration of this Agreement, any rights or licenses granted to Customer under this Agreement shall be immediately terminated, Customer shall immediately pay all amounts due and payable to Briostack through the effective date of termination, and in the case of Customer’s uncured breach, or in the event of Customer’s early termination without cause, Customer shall be liable for early termination fees as set forth in Section 12 below.
12. Early Termination Fees.
Customer understands and acknowledges that in the event of an early termination with or without cause by Customer, early termination fees shall apply. Early termination fees shall be in addition to any other fees owed by Customer for contracted professional services. Early termination fees shall be computed based on the highest monthly fees ever due, paid or outstanding, whichever amount is the greatest amount, multiplied by the number of months remaining in the Initial Term, or in the then current Renewal Term, as applicable. Said early termination fees will be invoiced to Customer in one lump sum within fifteen (15) days of Customer’s termination notice, and will be due net thirty (30) days from the date of invoice. Early termination fees shall not apply if a Customer’s termination is due to Briostack’s uncured breach of its obligations under this Agreement.
The rights and obligation of Customer under this Subscription Agreement shall not be assigned to any other party without Briostack’s express written consent. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be governed by and construed in accordance with the internal laws of the State of Utah, without giving effect to the principles of conflicts of laws thereof. Any dispute under this Agreement shall be exclusively venued in the federal and state courts of Salt Lake City, Utah. Each party waives any claims that such forum is not convenient for it. The prevailing party in any action to enforce this Subscription Agreement will be entitled to recover its reasonable attorney’s fees and costs in connection with such action. Except for a party’s payment obligations hereunder, a party shall be excused from any delay or failure to perform all or any part of this Subscription Agreement by events, occurrences, or causes beyond its reasonable control including but not limited to, acts of God, labor disputes, strikes, riots, acts of terrorism, war, or governmental requirement (“Force Majeure Events”). Any waiver of the provisions of this Subscription Agreement or of a party’s rights or remedies under this Subscription Agreement must be in writing to be effective. Failure to exercise or enforce any right or provision of this Subscription Agreement shall not constitute a waiver of such right or provision. If any provision of this Subscription Agreements determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Subscription Agreement shall remain enforceable. Each party shall comply with all applicable laws and regulations including federal, state and local, laws, orders and regulations that may apply in connection with this Subscription Agreement (“Law”), or any Order Form pursuant to the Subscription Agreement. Without prejudice to the generality of the foregoing, each party agrees to comply with all applicable laws and regulations relating to trade and export control (including those of the United States as applicable), and to cooperate in good faith to ensure compliance with the foregoing. Any notice provided pursuant to this Subscription Agreement, if specified to be in writing, shall be in writing and shall be deemed given (a) if by hand delivery, upon receipt thereof, (b) if by mail or by facsimile transmission, upon receipt thereof, or (c) if by next day delivery service, upon such delivery.
14. Security Breach.
Briostack and Customer each shall notify the other promptly following discovery of any actual security breach of the information systems maintained by it. The party that suffers the security breach (the “Affected Party”) agrees to take action promptly, at its own expense, to investigate the actual security breach, to identify and limit the effects of any such breach and to implement reasonable and appropriate measures in response to such security breach, including, but not limited to, immediate action designed to prevent any future occurrence. The Affected Party also will provide the other party with all reasonably available information regarding such security breach to assist the other party in implementing its information security response program, including, but not limited to, the actions taken by the Affected Party in response to such security. The Affected Party, to the extent required by Requirements of Law, shall notify affected customers of the security breach; provided, that, if the security breach relates to Customer Information of a Cardholder, Customer shall determine whether Customer or Briostack will send any required notice and the content of any such notice. In either case, the Affected Party shall bear all costs related to any such notice. Except as may be strictly required by Requirements of Law, the Affected Party will not inform a third Person of any such security breach without the other party’s prior written consent; however, if such disclosure is required by Requirements of Law, Affected Party shall work with the other party regarding the content of such disclosure as to minimize any potential adverse impact upon the other party, its clients and customers.
15. Subscription Agreement General.
This Subscription Agreement, Terms and Conditions found at www.briostack.com/terms and related Order Form (and any addenda or amendments hereto): (a) represents the entire agreement between the parties relating to the subject matter of this Subscription Agreement, (b) supersedes all prior agreements, representations and warranties relating to the subject matter of this Subscription Agreement, (c) except with respect to the rights set forth in Section 5 of this Subscription Agreement, may only be amended, canceled or rescinded by a writing signed by both parties, Section 2 (Ownership), Section 3 (Confidentiality), Section 9 (Limitation of Liability), and Section 13 (General) shall survive any termination of this Subscription Agreement, (d) shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, executors, administrators, successors and assigns, (e) may be executed in counterparts, or by facsimile signature, and it shall not be necessary that the signatures of each party appear on each counterpart; but it shall be sufficient that the signature of each party appear on one or more of the counterparts, and all counterparts shall collectively constitute a single agreement, and (f) contain section headings that are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.
Revised March 2021