Annex 1

General Terms and Conditions for the 

Subscription of brighter AI Software Services

Last updated: 29 August 2022

Preamble

These Terms and Conditions refer to the Subscription Agreement (“the Agreement”) that brighter AI concludes with the Client regarding the use of the brighter AI software services, as laid down in the Order Form between brighter AI and the Client.

By using the brighter AI Software Services, the Client agrees to be bound by, and use such Services in compliance with these Terms and Conditions. 

brighter AI offers the brighter AI offers the use of its Software Services exclusively for businesses and business purposes, and NOT for consumers. Users are not allowed to use the Services as consumers.

These Terms and Conditions can be changed with regard to the use of the brighter AI Software Services, in accordance with the sentences below provided that the change does not have any impact on the contractual content that is material for the equivalency of the Services, and provided that such change is reasonably acceptable for the Client. brighter AI will inform the Client about the change of these Terms and Conditions in text form. If, in this case, the Client does not expressly disagree in writing within four weeks after receipt of the change notice, the change will be deemed to be effective and from this point in time, the changed version of the Terms and Conditions is binding for the existing agreements between brighter AI and the Client. brighter AI will draw attention to this consequence in the change notice.

1. Definitions 
   1. “Confidential Information” means any information that brighter AI or the Client protect against unrestricted disclosure to third parties or that is considered confidential in light of the circumstances of disclosure or its content, including this Agreement itself. In any event, the following information shall be deemed to be Confidential Information of brighter AI: information on research and development, product offerings, pricing and availability of brighter AI’s products and all brighter AI software, programs, tools, data or other materials provided by brighter AI to the Client in advance of or under this Agreement.
   2. “Error Correction” means either a modification or addition that, when made or added to the Product(s) brings the Product(s) into conformity with their published specifications, or a procedure or routine that, when observed in the regular operation of the Produces), avoids the practical adverse effect of such nonconformity.
   3. “Open Source Software” means software that requires as a condition of use, modification, and/or distribution of such Open Source Software that such Open Source Software or other Open Source Software incorporated into, derived from, or distributed with such Open Source Software; (a) be disclosed or distributed in source code form; or (b) be redistributable at no charge. 
   4. “Service”, “Software”, “Software Services” or “brighter AI Software” refers to any brighter AI software solution or services, as indicated in the Order Form. 
   5. “Sublicensee” is a company or organization which receives a sublicense from the Client after brighter AI has given its consent with an individual written confirmation.
   6. “Term License” means a right to access the Service and use it in accordance with this Agreement during either the Initial Term or a Renewal Term. Term License also means that the license is non-perpetual.
   7. “Updates” means any error corrections, bug fixes, modifications made by brighter AI, or enhancements to the Service. 
2. Subject of the Agreement
   1. For the term of the Agreement, brighter AI grants the Client access to the Service and allows the Client to use it in accordance with the rules of these Terms and Conditions.
   2. The brighter AI Software is installed either a) on servers hosted by brighter AI or its subcontractors (cloud model) or b) on servers hosted by the Client or its subcontractors (on-premise model), as indicated in the Order Form.
   3. The brighter AI Software does not become part of any Client Products and Services portfolio unless otherwise explicitly agreed in writing with brighter AI.
   4. The Data Processing Agreement constitutes an integral part of this Agreement. In case of any contradiction between the Data Processing Agreement and these Terms and Conditions, the text of the respective Data Processing Agreement shall prevail.
3. Intellectual Property
   1. As between brighter AI and the Client, all rights in brighter AI Software – especially without being limited to all copyright and other IP Rights – shall be the sole and exclusive property of brighter AI, including without limitation brighter AI Software created to address a requirement of or in collaboration with the Client.
   2. brighter AI grants to the Client a non-exclusive, non-transferable, worldwide Term License to access and use the Service for the Client’s internal purposes and in accordance with this Agreement. Sublicensing including (in the on-premise model) outsourcing of the brighter AI software to a subcontractor is only permitted with brighter AI’s prior written consent. The Client is otherwise not allowed to sublicense, license, sell, lease rent or otherwise make any Service, Software or materials belonging to the brighter AI Software available to third parties.
   3. To the extent the brighter AI Software contains components of Open Source Software, the respective owner of the Open Source Software grants to the Client use rights as defined in the applicable Open Source Software license.
   4. When using the Service, the Client shall not: (a) copy, translate, disassemble, decompile, reverse engineer, or otherwise modify, in full or in part, or make any  derivative works of the Service, or related materials except to the extent permitted by mandatory statutory law. The Client shall have no right to receive, review, or otherwise use or have access to the source code of the brighter AI Software; (b) rent, lease, or sublicense access to any of our Software or Services; (c) circumvent or disable any security or technological features or measures of our Software or Services; or (d) use our Software or Services in any way other than good faith usage with respect to the Client’s reasonable business needs, as applicable. Any rights not expressly granted herein are reserved by brighter AI.
   5. The Client may not use the brighter AI Software for any unlawful purposes and must always be compliant with all applicable laws and regulations. In particular, The Client will not upload to the Service or use any content or data that is unlawful or infringes any intellectual property rights of third parties. In case the Client or his Sublicensees infringe duties and obligations under this Agreement or under statutory law, brighter AI is entitled to revoke the license and terminate this Agreement with immediate effect.
   6. brighter AI can temporarily limit or suspend Client’s access to the Service to prevent damages, if it is sufficiently probable that the continued use of the Service in breach of contract by the Client, or a third party using the Client’s access data may result in harm to the Service, other brighter AI customers, or the rights of third parties in such a way that immediate action is required to avoid damages. brighter AI will notify the Client of the limitation or suspension without undue delay.  If circumstances allow, the Client shall be informed in advance in writing or by email. The Client will limit the suspension or limitation in time and scope as reasonably possible under the circumstances.
   7. If any anonymized dataset based on the brighter AI Software and its anonymization technologies is published by the Client or its Sublicensees, a caption needs to be added that states “Dataset Anonymized by brighter AI”, including a link to brighter AI’s website.
   8. ‍The Client hereby accepts this license. 
   9. The Client retains ownership of all intellectual property rights in any image or video submitted/uploaded by the Client in the course of using our Services („Content“). brighter AI does not claim ownership over any of the Client’s Content. These Terms and Conditions do not grant brighter AI any licenses or rights to the Client’s Content except for the rights needed for brighter AI to provide the Services.
4. Pricing
   1. The use of the brighter AI Software and Services is subject to a subscription and the following payment conditions.
   2. The Client shall pay the Subscription Fees for the use of the brighter AI software and services to brighter AI as stated for the Client’s subscription(s) in the respective Order Form. Payments are due within 30 days after receipt of the invoice. 
   3. All amounts and fees stated or referred to in these Terms and Conditions:
      1. shall be payable in Euros;
      2. are, subject to the Limitation of liability, non-cancellable and non-refundable;
      3. are exclusive of value added tax (VAT), which shall be added to brighter AI’s invoice(s) at the applicable rate.
   4. Pricing is stated in the Order Form and depends on the purchased volume that includes anonymization of the indicated amount of video hours or single frames (“up to”). A video hour is based on 24 Frames per second. Unused volume is forfeit at the end of each billing period.  In case of higher resolutions (e.g. “4K”) or overconsumptions an additional package is required as indicated in the Order Form.
   5. The Client agrees to keep the pricing confidential and shall not disclose such information to any third parties without brighter AI’s prior written consent. 
5. brighter AI Obligations
   1. brighter AI shall use state-of-the-art measures and procedures to ensure that no forms of malware, e.g. software or code that is designed to infiltrate a computer, system, network or other infrastructure such as virus, trojans, worms, backdoors, botspyware, keyloggers, hijackers or web bugs are part of the Service when it is made available to the Client. brighter AI will provide Updates on a periodic basis.
   2. brighter AI shall provide technical supp with respect to Error Corrections and Updates to designated members of the Client’s technical support team. brighter AI shall provide availability to trained technical support staff by email between the hours of 9am and 5pm (CET) on business days. In the event that the Client reports an Error to brighter AI, brighter AI shall respond within twenty-four (24) hours during business days and use commercially reasonable efforts to provide a fix, patch or work around for any Errors as soon as is practicable. 
   3. brighter AI shall provide trained technical staff that will be available to answer technical support questions and respond by e-mail in a professional manner to the report of Errors and to requests for Error Corrections.
   4. brighter AI uses commercially reasonable endeavors to make the brighter AI Services available 24 hours a day, seven days a week, except for:
      1. planned maintenance carried out during the maintenance window of 08:00 am to 12:00 pm CET or CEST; and
      2. unscheduled maintenance performed outside normal business hours, provided that brighter AI has used reasonable endeavours to give the Client at least 6 hours notice in advance via Your Account or email.
   5. The content or technique of the Software Services can be changed by brighter AI provided that the change does not have any impact on the contractual content that is material for the equivalency of our services, and provided that such change is reasonably acceptable for the Client. brighter AI shall notify the Client via the Account or via email in the event that such changes and/or modifications are made and the Client further agrees to accept any and all such changes.
   6. brighter AI shall comply with all the duties and obligations created under this Agreement and all applicable provisions of statutory law.
6. Client Obligations 
   1. The access to the Service is only granted to the Client for its own use unless explicitly agreed otherwise in writing between the parties. In case that sublicensing/subcontracting has been permitted by brighter AI, the Client is obliged to prove to brighter AI that the subcontractor has been committed to the terms of this Agreement prior to any possible usage by the subcontractor anytime at request by brighter AI. The obligations of the Client under this Agreement also include the subcontractors, and the Client is responsible to oblige them respectively. This also applies to the Data Processing Agreement.
   2. The Client agrees that brighter AI may use Client’s name and logo/trademark to identify the Client as a customer of brighter AI and within brighter AI’s marketing materials and campaigns. brighter AI’s use of the name and logo does not create any ownership right therein and all rights not granted to brighter AI are reserved by Client. The Client’s information may also be used for future case-studies. Before publishing such case studies, brighter AI will approach the Client for obtaining his consent to the use of his name in the publication. Notwithstanding the forgoing, the contents of this Agreement and all agreements between the Parties is confidential information and shall not be disclosed.
   3. brighter AI must be notified in advance of any use of the Services that goes beyond the agreements in the Order Form. It requires an extension of this Agreement with brighter AI on the additional scope of use. The extension shall be made on the basis of brighter AI’s price list valid at the time of the extension. The Client shall keep clear and accurate records, files and books of account containing all data relating to its use of the Service with sufficient details to permit the correct fulfillment by the Client of its payment obligations and other obligations hereunder to be determined and verified. 
   4. brighter AI is permitted to audit the Client’s usage of the brighter AI Software for billing purposes. In the subscription model, brighter AI is entitled to permanently monitor Client usage and in particular count anonymized frames of the usage in accordance with brighter AI standard procedures. In the on-premise model, auditing is carried out regularly in the form of bi-annual self-reports upon brighter AI’s request. brighter AI may also carry out remote audits if the self-report was refused or if it did not provide any meaningful results and there are objective indications of a violation of rights by the Client. The Client shall cooperate with brighter AI in an appropriate manner in the performance of such audits, in particular by allowing brighter AI to inspect its systems to the extent necessary in the case of remote audits. The Client’s confidentiality interests and the protection of its business operations against interference shall be taken into account in an appropriate manner.
   5. The Client undertakes not to circumvent or endanger the operation or security of the Service.
   6. The Client shall take no steps, nor permit others to take any steps, which result in the Software being considered Open Source Software.
   7. The Client shall not place, sell, transfer or give copies of the Software in the Service to any Sublicensee, customer, distributor, parent, subsidiary, affiliated party, or third party, in such a manner as to circumvent or attempt to circumvent the time and consumption based licensing model.
   8. The Client must take appropriate precautions against the possibility that the Service or any part thereof does not function properly (e.g. by performing its own data back-ups, error diagnosis and regular results monitoring).
   9. The Client shall comply with all the duties and obligations created under this Agreement and all applicable provisions of statutory law.
7. Liability: brighter AI’s liability – irrespective of its legal ground – shall be limited as follows:
   1. Unlimited Liability: Brighter AI shall be liable without limitations only in the following cases:
      1. in case of intent and gross negligence,
      2. in case of injuries to life, body or health,
      3. pursuant to the terms of the German Product Liability Act, or
      4. under a guarantee granted by brighter AI.
   2. Limited Liability: brighter AI’s liability – irrespective of its legal ground – shall be limited as follows:
      1. Liability for breaches of Cardinal Duties: Subject to Section 7.1 above, brighter AI’s liability for slightly negligent breaches of Cardinal Duties shall be limited to such damage which was typical for this kind of business and foreseeable upon the execution of this Agreement. In any case brighter AI’s liability shall not exceed the sum that the Client has paid to brighter AI in the past 12 months prior to the incident that lead to the liability claim.
      2. Force Majeure: Neither Party shall be responsible for any failure to perform its duties under this Agreement due to Acts of God and any time of delivery or performance agreed hereunder shall be extended by the time such Acts of God exist plus reasonable starting time thereafter. The Party affected by an Act of God shall inform the other Party without undue delay of such Act of God and the expected duration thereof. If an Act of God lasts for more than 3 subsequent months, either Party may withdraw from this Agreement.
      3. No liability: brighter AI shall not be liable irrespective of the legal grounds except as expressly set forth in Sections 7.1 and 7.2 above. brighter AI is not liable for the legal compliance of the Software under laws of foreign states, especially not under United States laws. The Client bears the full responsibility for the lawfulness of its use of the technology.
   3. Limitation of Action: brighter AI’s liability pursuant to Section 7.1 lit (b) to (d) above and in case of intent shall be time-barred within the statutory period. In all other cases brighter AI’s liability as well as its duties for warranties shall be time-bared to a period of one year. Section 199 German Civil Code shall apply.
8. Non-Disclosure and Confidentiality 
   1. If the Parties have concluded a separate Non-Disclosure Agreement, such Non-Disclosure Agreement should regulate the relationship between the Parties only regarding Non-Disclosure and Confidentiality. In case the Parties have not concluded such an Agreement, the following rules shall apply:
   2. Both parties undertake to keep each other’s Confidential Information confidential – even beyond the time of the termination of this Agreement. The Client further undertakes to use the brighter AI Confidential Information exclusively for the intended purpose, i.e. for the use of the Software Services. Any further use or disclosure to third parties requires the prior written consent of brighter AI. 
   3. The Client is obliged to notify brighter AI immediately in writing if he can no longer ensure compliance with this obligation, in particular if a necessity or obligation arises for him or if he could have recognized such a necessity or obligation that could prevent him from complying with confidentiality.
   4. The obligation to maintain confidentiality shall not apply to information that 
      1. is already public knowledge at the time of the transfer or – through no fault of the recipient of the information – becomes public knowledge later,
      2. was already known to the Client before it was provided or is lawfully provided to him afterwards by a third party without the Client having been obligated by the third party to maintain confidentiality,
      3. are to be published by the Client in accordance with statutory provisions. In this case, the Client shall immediately inform brighter AI thereof and coordinate the further procedure, insofar as this is permissible in the individual case,
      4. have been or will be developed by the Client independently of this Agreement.
   5. The Client is obliged to prove the existence of the conditions of the above mentioned exceptions.
   6. The Client undertakes upon brighter AI’s explicit request to hand over to brighter AI or delete all brighter AI Confidential Information within 14 days after the termination of this Agreement, unless the Client is entitled to keep such information based on mandatory statutory law or based on the provisions of this Agreement. 
9. Data Protection
   1. Both parties to this Agreement will observe all applicable provisions and rules of data protection laws, in particular the EU General Data Protection Regulation (GDPR) and the German Data Protection Law BDSG (Bundesdatenschutzgesetz).
   2. The employees of brighter AI have been obliged to data secrecy.
   3. In case of using the brighter AI cloud service the Parties conclude a Data Processing Agreement. This agreement can be found under the following URL: https://brighter.ai/wp-content/uploads/2020/11/brighterAI_dpa.pdf
   4. The Client is responsible for the content of the data he uploads to and enters into or creates with the Service. The Client grants to brighter AI a nonexclusive right to process this data for the sole purpose of and only to the extent necessary for brighter AI to provide and support the Service (including without limitation preparing backup copies or performing penetration tests); and to verify the Client’s compliance with the provisions set forth in this Agreement.
   5. The Client will collect and maintain all personal data contained in the uploaded data in compliance with applicable data protection law.
   6. The Client shall maintain appropriate security standards for use of the Service by the authorized users. The Client will not conduct or authorize penetration tests of the Service without advance approval from brighter AI. The Client is solely responsible for determining the suitability of the Service for the Client’s business processes and for complying with all applicable legal provisions regarding personal data and its use of the Service. 
10. Term and Termination
    1. This Agreement shall become effective as stated in the Order Form, or if the Order Form does not contain any such information, immediately after it has been signed by both Parties.
    2. The term of the Agreement is subject to the Order Form. In case the Order Form does not contain any rule regarding the term, the Agreement has a minimum length of 12 months and is extended automatically for additional 12 months.
    3. Each Party has the right to terminate the Agreement with a notice period of three months prior to the respective automatic extension. In case no timely termination notice was received by brighter AI, the Agreement shall stay effective and continue to prolong accordingly.
    4. The right of each Party to terminate this Agreement for good cause shall remain unaffected. In particular, either Party may (without prejudice to any other rights) terminate the Agreement by written notice to the other if:
       1. The other Party commits a material breach of this Agreement which (in the case of a breach capable of remedy) has not been remedied within seven days of the receipt by the other Party of a notice specifying the breach and requiring its remedy;
       2. The other Party becomes bankrupt, insolvent, or is wound up or goes into liquidation or has a receiver, administrative receiver or administrator appointed for the whole or any part of its assets or suffers the appointment of any similar person under the laws of its domicile.
    5. During the subscription term, the input data uploaded by the Client for anonymization purposes are automatically deleted after the anonymization is completed. The Client can delete the anonymized data anytime via an API call. Within the cloud service, the anonymized data are automatically deleted after 24 hours, unless binding legal rules require retention. Within this 24 hours period, the Client may export and retrieve its data in a standard format. Export and retrieval may be subject to technical limitations and prerequisites in accordance with no. 5.4 of these Terms and Conditions.
    6. Upon termination in the on-premise model, the Client is obliged to seize any use of the brighter AI software and to delete all copies of the brighter AI software irreversibly from its servers or the servers of its subcontractor(s). brighter AI may request from the Client a documentation and written confirmation of such deletion.
    7. Termination notices require the written form.
11. Export Control
    1. brighter AI and the Client shall adhere to all applicable export laws. brighter AI confidential information and intellectual property is subject to export laws.  The Client, its affiliates, and authorized users shall not directly or indirectly export,  re-export, release, or transfer brighter AI confidential information or intellectual property in violation of export laws. The Client is solely responsible for compliance with export laws related to data the Client uploads to or creates within the service, including obtaining any required export authorizations for client data prior to the usage of the brighter AI Software Services. Client shall not use the brighter AI Service from Crimea/Sevastopol, Cuba, Iran, the People’s Republic of Korea (North Korea) or Syria and other countries as soon as comparable sanctions and export controls apply to such countries.
    2. Upon brighter AI’s request, Client shall provide information and documents to support obtaining an export authorization. Upon written notice to Client brighter AI may immediately terminate the Client’s subscription to the affected software and services if a) the competent authority does not grant such export authorization prior to the usage of the brighter AI software services, or b) Export Laws prohibit brighter AI from providing the software services to the Client.
12. Miscellaneous
    1. This Agreement supersedes all prior and contemporaneous discussions and agreements, both written and oral, among the Parties with respect to its subject matter and constitutes the sole and entire agreement among the Parties with respect to such subject matter.
    2. This Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each Party to this Agreement. The text form shall be sufficient to meet this requirement.
    3. This Agreement and any disputes arising under or in connection with this Agreement or its validity shall be governed by German law excluding its conflict of law terms and the UN Convention on Contracts regarding the International Sale of Goods (UN CISG). The exclusive place of jurisdiction shall be Berlin.
    4. If a provision of this Agreement should be or become invalid or not contain a necessary regulation, the validity of the other provisions of this Agreement shall thereby not be affected. The invalid provision shall be replaced, and the gap be filled by a legally valid arrangement which corresponds as closely as possible to the intentions of the Parties or what would have been the intention of the Parties according to the aims of this Agreement, had they recognized the invalidity/gap.