PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING "ACCEPTED AND AGREED TO," CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
Use of the System. During the Term, Customer may access and use the System pursuant to: (a) the terms of any outstanding Order, including such features and functions as the Order requires; and (b) Company's policies posted on its Website at https://brainswarming.io/, as such policies may be updated from time to time. Service Levels. Company will provide the remedies listed in the SLA for any failure of the System listed in the SLA. Such remedies are Customer's sole remedy for any failure of the System, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA, if any, apply to outstanding or future invoices only and are forfeited upon termination of this Agreement. Company is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.
Company may revise System features and functions or the SLA at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the System materially reduces features or functionality provided pursuant to an Order, Customer may within ten (10) days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding. If any such revision to the SLA materially reduces service levels provided pursuant to an outstanding Order, the revisions will not go into effect with respect to such Order until the start of the Term beginning thirty (30) or more days after Company posts the revision and so informs Customer. System Fees. Customer will pay Company the fees for access to Brainswarming and any additional features selected as set forth in each Order (the "Subscription Fee") for the Term. Company will not be required to refund the Subscription Fee under any circumstances.
Use of Customer Data. Unless it receives Customer's prior written consent, Company: (a) will not access, process, or otherwise use Customer Data other than as necessary to facilitate the System; and (b) will not intentionally grant any third party access to Customer Data, including without limitation Company's other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Company may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Company will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer's expense.
Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Company offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
Company will have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
Company may permanently erase Customer Data if Customer's account is delinquent, suspended, or terminated for sixty (60) days or more.
Notwithstanding the provisions above of this Article 4, Company may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. ("Aggregate Data" refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.)
Customer will not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Company may suspend Customer's access to the System without advanced notice, in addition to such other remedies as Company may have. This Agreement does not require that Company take any action against Customer or any User or other third party for violating this Section 5.1, or this Agreement, but Company is free to take any such action it sees fit.
Customer will take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer will notify Company immediately of any known or suspected unauthorized use of the System or breach of its security and will use best efforts to stop said breach. Compliance with Laws. In its use of the System, Customer will comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
Customer is responsible and liable for: (a) Users' use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer's account, whether authorized or unauthorized.
Company retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. Customer recognizes that the System and its components are protected by copyright and other laws.
Notwithstanding the provisions of Article 7 below, Company has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer or Users provide to Company, and nothing in this Agreement or in the parties' dealings arising out of or related to this Agreement will restrict Company's right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. ("Feedback" refers to any suggestion or idea for improving or otherwise modifying any of Company's products or services.)
"Confidential Information" refers to the following items Company discloses to Customer: (a) any document Company marks "Confidential"; (b) any information Company orally designates as "Confidential" at the time of disclosure, provided Company confirms such designation in writing within seven (7) business days; and (c) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer's possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer's improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include Company's valuable trade secrets.
Customer will not use Confidential Information for any purpose other than in connection with Customer's own use of the System or as may be specifically contracted with the Company through an Order or other contractual arrangement (the "Purpose"). Customer: (a) will not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7; and (b) will not disclose Confidential Information to any other third party without Company's prior written consent. Without limiting the generality of the foregoing, Customer will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer will promptly notify Company of any misuse or misappropriation of Confidential Information that comes to Customer's attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer will give Company prompt notice of any such legal or governmental demand and reasonably cooperate with Company in any effort to seek a protective order or otherwise to contest such required disclosure, at Company's expense.
Customer agrees that breach of this Article 7 would cause Company irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Company will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate five (5) years after the date of disclosure; provided that such obligations related to Confidential Information constituting Company's trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer will return all copies of Confidential Information to Company or certify, in writing, the destruction thereof.
This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Company will retain all right, title, and interest in and to all Confidential Information.
Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (A) is made: (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual: (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
From Company. Company represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Company's representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Company. In the event of a breach of the warranty in this Section 8.1, Company, at its own expense, will promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer's right to terminate for breach where applicable, the preceding sentence states Company's sole obligation and liability, and Customer's sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the System. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, limited liability company, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
Except to the extent set forth in the SLA and in Section 8.1 above, CUSTOMER ACCEPTS THE SYSTEM "AS IS" AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) COMPANY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE. Indemnification. Customer will defend, indemnify, and hold harmless Company and the Company Associates (as defined below) against any "Indemnified Claim," meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer's employees, as well as by Customer's own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer's account, including without limitation by Customer Data; and (d) claims that use of the System through Customer's account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Company's negligence. Customer's obligations set forth in this Article 9 include retention and payment of reasonable attorneys’ fees and payment of court costs, as well as settlement at Customer's expense and payment of judgments. Company will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The "Company Associates" are Company's officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
COMPANY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED ONE THOUSAND DOLLARS ($1,000.00). Exclusion of Consequential Damages. IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Company's liability will be limited to the maximum extent permissible. For the avoidance of doubt, Company's liability limits and other rights set forth in this Article 10 apply likewise to Company's affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
The term of this Agreement (the "Term") will commence on the Effective Date and continue for the period set forth in the Order or, if none, for one (1) month. Thereafter, the Term will renew for successive one (1) month periods, unless either party refuses such renewal by written notice three (3) or more days before the renewal date. Termination for Cause. Either party may terminate this Agreement for the other's material breach by written notice. Such notice will specify in detail the nature of the breach and will be effective in thirty (30) days, or more if specified in the notice, unless the other party first cures the breach. Company reserves the right to terminate this Agreement immediately upon misuse of the System which in Company’s sole discretion threatens the integrity of the System in any way. Effects of Termination. Upon termination of this Agreement, Customer will cease all use of the System. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, nor may either party make commitments on the other's behalf. Notices. Company may send notices pursuant to this Agreement to Customer's email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to _________________________, and such notices will be deemed received 72 hours after they are sent. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Company's express written consent. Except to the extent prohibited in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties' respective successors and assigns. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the Commonwealth of Massachusetts, USA including without limitation applicable federal law of the United States, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties' rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Worcester County in the Commonwealth of Massachusetts, USA. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims. Conflicts. In the event of any conflict between this Agreement and any Company policy posted online, the terms of this Agreement will govern. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship. Technology Export. Customer will not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Company or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer will not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).