Terms and Conditions of the Proof of Concept
The following terms govern the “Proof-Of-Concept” (“Trial”) provided by Bruin Group LLC (“Bruin”). The subscriber to this Trial (“Customer”) and Bruin agree as follows:
1. Description of Services.
Bruin will provide the following services for Customer (“Services”), without charge:
Data gathering and analysis:
- Obtain 3-6 months’ of Customer’s telecommunications invoices for 1-2 Customer vendors, and load readily-parsable invoice charge data into the Bruin Portal (the “Data Set”).
- Extract inventory information from the Data Set, and, subject to time constraints and reasonable availability of applicable information, add inventory attribute information (such as User, Serial No, etc.) where available via Customer-provided file or customer service records available from the underlying carrier.
- Validate address information using available address validation databases.
If the inventory is for wireless services, compare the inventory information (assigned user names, where available from the underlying carrier) against a Customer-provided HR file (employee names and employment status).
- If available, compare billed inventory to a Customer-provided MACD (move, add, change, disconnect) file containing a list of services Customer believes are disconnected.
- Highlight any discrepancies and/or variances identified by the above processes.
- Associate the Data Set and inventory to Customer-provided organizational hierarchy and/or cost centers.
As a result of the data gathering and analysis processes, Bruin will present to Customer the following proprietary results for the Data Set:
- Spend trending.
- Analysis of spend by vendor, type of service, charge category, region, organizational hierarchy.
- Analysis of inventory by vendor, type of service, charge category, region, organizational hierarchy.
- Consolidated view of inventory by validated addresses.
- Charge variance reporting.
- Optimization / savings opportunities.
- Actionable results based on Customer’s HR or MACD data files.
Bruin Portal access will be provided during the Trial:
- Customer will be assigned a reasonable number of usernames and passcodes.
- Customer’s Trial Portal access and storage of the Data Set will persist for 30 days following presentation of the Service results.
- Customer will have access to Bruin ordering and Help Desk services for the services covered by the Data Set, which will include the ability to place and track service changes, repairs, and order new services.
Customer may be required to sign letters of authorization (authorizing Bruin to access billing data from the underlying carriers) and will otherwise reasonably cooperate with Bruin in performing the Services.
2. Trial Evaluation, Expectations and Budgetary Information.
Customer agrees to evaluate the Services in good faith for purchase consideration. There is no obligation to accept the Trial and either party may cancel the Trial at any time, however, in the event that Customer is satisfied with the Services, Customer will engage Bruin in good faith negotiation of a service agreement for continued use of Bruin services on its telecommunications inventory. Customer understands that the typical costs for Services of this type including Invoice Management & Bill Pay is two percent of the underlying spend, plus one to five dollars per line for Inventory Management and Managed Support, depending on Inventory type and support levels.
3. LIMITATION OF LIABILITY.
BRUIN’S AGGREGATE LIABILITY UNDER THIS AGREEMENT OR RELATED TO THE RELATIONSHIP CONTEMPLATED HEREUNDER FOR ANY REASON WHATSOEVER (WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT OR OTHERWISE) SHALL BE LIMITED TO PROVEN DIRECT DAMAGES AND SHALL NOT IN ANY EVENT EXCEED $1,000. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL BRUIN BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUE, PROFITS OR OTHER BENEFIT, LOSS OF OR DAMAGE TO RECORDS OR DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, EVEN IF BRUIN HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. BRUIN MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, OTHER THAN THOSE EXPRESSLY STATED IN THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL WITHSTAND ANY CHALLENGE BASED ON FAILURE OF ESSENTIAL PURPOSE OR SIMILAR THEORY.
4. Additional Covenants Regarding Analysis Services.
Bruin will not be responsible or liable in any way for failure to detect overcharges, undercharges, opportunities for optimization, or other errors except to the extent that such failure is the result of Bruin’s gross negligence in performing paid audit services (and subject to the other limitations set forth herein).
5. Proprietary Rights; Use of Software.
This Agreement and all Services, software, programs, documents, plans, business information, systems, data, techniques, processes, knowledge and deliverables, regardless of media, developed by Bruin or utilized by Bruin or Customer pursuant to this Agreement (other than information furnished by Customer) shall be deemed to be part of Bruin’s Confidential information (as defined below) and shall be and remain the sole and exclusive property of Bruin or its third-party licensees and may not be used by Customer except as contemplated hereunder. Any software application including, without limitation, the Bruin Portal (app.bruin.com or any successor thereto) or other Bruin website, and documentation and local computer files installed by the foregoing, in each case, provided by or on behalf of Bruin (“Bruin Software”), may be used in object code form only and solely for Customer’s internal business purposes as contemplated under this Agreement, during the term specified in the SOW. Customer may not (i) provide, disclose or make Bruin Software available to any third party, (ii) decompile, reverse engineer, disassemble, modify, rent, lease, loan, distribute, or create derivative works (as defined by the U.S. Copyright Act) or improvements (as defined by U.S. patent law) from the Bruin Software or any portion thereof, (iii) use the Bruin Software to operate or support nuclear facilities, life support or other mission critical applications where human life or property may be at stake or (iv) use the Bruin Software in any unlawful or abusive manner. Customer shall defend, indemnify and hold harmless Bruin and its suppliers and their officers, directors, agents, affiliates and employees from and against any claims, liabilities, losses, costs or damages (including legal fees and costs) arising out of any use of Bruin Software provided to Customer. Except for limited rights to use Bruin Software and the Services which are expressly set forth in this Agreement, no license or other rights are granted to Customer in the Bruin Software or in Bruin’s trademark, copyright, patent, trade secret or other proprietary rights.
Each party shall hold in confidence information received from the other party that is designated confidential or proprietary or that a reasonable person would treat as confidential based upon the nature of the information disclosed or the circumstances of the disclosure (“Confidential Information”). The parties agree that Confidential Information shall include information relating to the disclosing party’s technology and business affairs. Neither party shall disclose Confidential Information to any third party or use Confidential Information for any purpose other than for performance of this Agreement. The parties may disclose Confidential Information to their agents that are bound by non-disclosure obligations that are substantially similar to those set forth in this Agreement. The fact that the parties are engaged in a business relationship is not Confidential Information. Customer must obtain Bruin’s written permission prior to disclosing any Bruin Confidential Information to any competitor of Bruin. The foregoing restrictions shall not apply to information that: (a) is or becomes publicly available through no act or omission of the receiving party; (b) was already in the lawful possession of the receiving party without an obligation of confidentiality; (c) is lawfully disclosed to the receiving party by a third party that is not restricted from making such disclosure; (d) is required to be disclosed by subpoena or other legal process, limited to the extent required by the terms of such subpoena or other legal process; (e) is approved in writing by the disclosing party for further disclosure; (f) is independently developed without reference to the Confidential Information and is so documented by the receiving party; or (g) is required to provide the Services or transact with Customer’s vendors. Receiving party acknowledges that the unauthorized use or disclosure of any such Confidential Information is likely to cause irreparable injury to disclosing party for which there is no adequate remedy at law. Accordingly, disclosing party may seek injunctive relief to prevent or remedy any breach of the confidentiality obligation described herein without being required to post bond.
7. Entire Agreement.
This Agreement (and any click-through or similar agreement agreed to in connection with Portal access) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other representations, understandings or agreements that are not expressed herein, whether oral or written. If any part of this Agreement is rendered invalid or unenforceable, the rest of the Agreement will remain valid and enforceable.
8. Governing Law; Venue.
This Agreement shall be governed by the laws of New York, without regard to its choice of law principles, and any action or proceeding involving this Agreement shall be commenced and maintained only in the courts of the State of New York within New York County.