Briefcase Service Terms

Services are provided by Briefcase to Customer under these terms and conditions. Last updated on May 23, 2013.

Definitions

  • “Customer” means the corporate entity named in the Agreement.
  • “Briefcase” means Briefcase Analytics, Inc.
  • “Agreement” means any contract, proposal, order form, or invoice for services to be performed by Briefcase for Customer, and shall include these Service Terms.
  • “Service” means the services described in the Agreement, including any software and Information made available to Customer in connection with the Service.
  • “Information” means any data and information collected and/or created by Briefcase and made available to Customer in connection with the Service.
  • “Term” means the duration period specified in the Agreement.
  • “Confidential Information” means certain non-public proprietary information about Customer and its business affairs, including (without limitation) the names of its specific vendors or prospective vendors, disclosed by Customer in the course of its engagement with Briefcase.
  • “Service Terms” means these terms and conditions, which are accessible at http://www.briefcasedata.com/serviceterms.
  • “Start Date” means the beginning date of a Term.
  • “End Date” means the ending date of a Term.
  • “Briefcase IP Marks” means the names "Briefcase Analytics" and "briefcasedata.com", and Briefcase’s graphics, logos, and trade names.

1) License & Authorized Uses

Customer is authorized to use the Service for purposes relating directly or indirectly to the conduct of its primary business. Briefcase grants, and Customer accepts, a perpetual, global, non-exclusive, non-transferable, limited license to use the Service for these authorized purposes, and for no other purposes.

2) Prohibited Uses

Customer shall not use the Service for any purpose not expressly authorized by the Agreement or the Service Terms.

3) Term & Termination

Customer or Briefcase may terminate the Agreement before the end of the Term only if: (1) the other party has materially breached the Agreement; and (2) the breaching party has failed to cure such breach within thirty (30) days following delivery of written notice from the non-breaching party.  If Customer terminates the Agreement because of an uncured breach by Briefcase, Customer will be entitled to a refund of all sums actually paid in advance for service-months post-dating the date of termination.

4) Warranties & Disclaimers

The Service (including the Information) represents the considered, informed opinion of Briefcase Analytics, not statements of objective fact. The Service and the Information are provided on an "as is" basis. Briefcase makes no representation or warranties of any kind, express or implied, as to the Service or the Information. There may be delays, omissions, or inaccuracies in the Information. Briefcase expressly does not warrant the fairness, accuracy, completeness, currency, noninfringement, or fitness for a particular purpose of the Service or the Information.

This section will survive any termination of the Agreement or the Service Terms.

5) Confidentiality

(a) During the Term and thereafter, Briefcase will maintain the confidentiality of the Confidential Information, and will not disclose, reveal or make available the Confidential Information to any person or entity other than its affiliates or representatives who have a need to know the Confidential Information and who have agreed in writing to abide by the Service Terms. Briefcase agrees that it will use the Confidential Information solely for the purpose of delivering the Service to Customer, except as otherwise permitted below.

(b) Briefcase shall not be restricted in using or disclosing Confidential Information that Briefcase can demonstrate: (1) was publicly known prior to the Start Date of the Agreement; (2) was in the possession of Briefcase prior to disclosure by Customer; (3) was readily available to Briefcase from another source without violation of the Agreement; (4) becomes part of the public domain or publicly known, other than through any act or omission of Briefcase; or (5) was independently developed by Briefcase or acquired by Briefcase without reference to the Confidential Information. Specifically, and without limitation, nothing in the Agreement shall prevent Briefcase from using any vendor risk-profile information developed by Briefcase from public sources for general research, analysis, and quality assurance purposes for the benefit of Customer and other Briefcase clients; provided, however, that at no time shall Briefcase disclose to any third-party the existence of an actual or prospective business relationship between Customer and any specific vendor.

(c) If Briefcase is requested or required by any judicial, governmental or regulatory authority to disclose any Confidential Information, then Briefcase will promptly notify Customer of such request prior to disclosing such Confidential Information, so that Customer may seek a protective order. If, in the absence of a protective order, Briefcase is legally compelled to disclose such Confidential Information, Briefcase may, without liability under the Agreement, furnish only that portion of such Confidential Information that Briefcase is advised is legally required to be furnished.

(d) This section will survive any termination of the Agreement or the Service Terms.

6) Limitations of Liability

Under no circumstances shall the liability of Briefcase (including any of its employees, officers, shareholders, partners and affiliates) to Customer for any cause of action related to the Service or the Agreement exceed the total amount actually paid by Customer to Briefcase during the Term specified in the Agreement.

Regardless of any statute or law to the contrary, Customer must commence any cause of action related to the Service or the Agreement within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.

Briefcase shall not be liable to Customer for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Briefcase has been advised of the possibility of such damages), resulting from Briefcase’s provision of the Service, or for any other matter relating to the Service.

This section supersedes all other provisions of the Agreement, the Service Terms, and any terms attached to any Customer purchase order, and will survive any termination of the Agreement, the Service Terms, or such purchase order.

7) Indemnification

Customer will defend, indemnify and hold harmless Briefcase (including its employees, officers, shareholders, partners and affiliates) from and against any and all claims, losses, damages and expenses, including attorneys’ fees, incurred by Briefcase arising out of Customer’s unauthorized use of the Service, including but not limited to Customer’s violation of the Agreement or the Service Terms; provided that Briefcase: (a) promptly gives Customer written notice of any such claim; and (b) gives Customer, at its option, sole control of the defense and settlement of the claim, provided that Briefcase will be entitled to participate in its own defense at its own expense and, further, that Customer may not settle any claim unless the settlement unconditionally releases Briefcase of all liability and does not require the payment of money by Briefcase.

This section will survive any termination of the Agreement or the Service Terms.

8) Intellectual Property Ownership

Briefcase IP Marks are trademarks or trade dress of Briefcase in the United States and/or other countries. Customer may not use the Briefcase IP Marks without the prior express written permission of Briefcase.

The Service and Information are patented or copyrighted by, or otherwise licensed to, Briefcase or its vendors and suppliers. All technology used in the Service is the property of Briefcase or its technology vendors and is protected by United States and international intellectual property laws. Briefcase makes no proprietary claim to any third-party names, trademarks or service marks appearing in the Service.

This section will survive any termination of the Agreement or the Service Terms.

9) No Legal Advice

Briefcase is not a law firm, and no attorney-client relationship is created through any use of the Service. None of the Information provided in connection with the Service shall constitute legal advice of any kind. No user of the Service should act or refrain from acting on the basis of the Service without seeking appropriate professional advice from a properly licensed attorney on the particular facts and circumstances at issue.

10) Miscellaneous

(a) The Agreement and the Service Terms constitute the entire, exclusive agreement between Customer and Briefcase and supersede any prior agreements or purchase order terms issued subsequently by Customer in relation to the subject matter of the Agreement and the Service Terms, whether written or oral.  Where the Agreement and the Service Terms conflict, the Service Terms shall supersede the Agreement.  The failure of Briefcase or Customer to exercise or enforce any right or provision of the Agreement or the Service Terms shall not constitute a waiver of such right or provision.  If any provision of the Agreement or the Service Terms is invalid under applicable law, the remaining provisions will continue in full force and effect.

(b) The Agreement, the Service Terms, and all intellectual property issues, rights, and obligations will be interpreted according to the laws of the United States and the Commonwealth of Massachusetts (without reference to its conflicts of laws provision).  All claims and disputes arising under or relating to the Agreement or Service Terms will be settled by binding arbitration in Massachusetts or another location acceptable to both parties. The arbitration will be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association as modified by the parties, by an arbitrator jointly selected by the parties.  The arbitrator’s decision or award shall be in writing and shall provide an explanation for all conclusions of law and fact.  Each party shall bear its own costs, expenses and attorneys fees; provided, however, that the cost of arbitration (including arbitrator’s fees) shall be borne by the party initiating the arbitration, regardless of outcome. An award of arbitration may be confirmed in a court of competent jurisdiction. Any action brought to challenge or otherwise circumvent the exclusive dispute resolution process described above shall be subject to the exclusive jurisdiction of the state and federal courts located in Massachusetts.

(c) The Agreement, the Service Terms and all of their provisions may not be amended or waived by Customer unless agreed upon in writing signed by the parties.  The Service Terms may be amended by Briefcase at any time. Such amended Service Terms shall be effective upon posting. By continuing to access or use the Service after such posting, Customer will be deemed to have accepted such amendments. Customer is advised to regularly review any applicable terms and conditions.

(d) Neither Briefcase nor Customer shall be responsible for delays or performance failures caused by acts beyond their reasonable control.

(e) In addition to its other rights to terminate the Agreement prior to the expiration of the Term, Briefcase may suspend Customer’s access to the Service (including the Information) upon written notice to Customer for failure to pay. Such suspension will not modify the terms and conditions set forth in the Agreement or the Service Terms.

(f) Neither party will assign the Agreement without the other party’s written consent. However, either party may assign the Agreement without the other party’s consent to any entity that directly or indirectly controls, is controlled by, or is under common control with the assigning party, or to a successor to all or substantially all of the assigning party’s business, assets, and obligations.

(g) The Agreement and the Service Terms are binding and will inure to the benefit of the parties and their respective successors and assigns.

(h) This section will survive any termination of the Agreement or the Service Terms.