Contracts
- BrainStorm's Customer Terms of Service
- QuickHelp Subscription Agreement
- BrainStorm Data Protection Agreement with SCCs
- QuickHelp Content Submission Policy
- Threat Defense Services Addendum
- Custom Event Video License Agreement
- BrainStorm's Privacy Policy
- New Customer Trial Order Form
- BrainStorm Trial Terms of Service
- BrainStorm API Terms & Conditions
- BrainStorm's Security Overview
- BrainStorm Platform Early Access Addendum
- BrainStorm Terms of Service for Insight Cloud Care Clients
- BrainStorm's Lite Customer Terms of Service
- BrainStorm's Customer ToS for Microsoft Voucher Program
- BrainStorm's Sandbox Terms of Service
- BrainStorm's T&Cs (Bare Minimum Terms)
- Customer and BSI Negotiated MSA
- BrainStorm's Customer Terms of Service (for Solution Provider Customers)
- Platform Trial Terms of Service
- BrainStorm Trial Terms of Service 45
- BrainStorm CSC Terms of Service
BrainStorm's Customer Terms of Service
Effective October 25th 2024
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- No Fee Content. In addition to access granted by any applicable Order Form, BrainStorm also grants access to certain packs, features, or content with no related fees ("No Fee Content"). The packs, features, or content contained in the No Fee Content is subject to change. In the event of such a change, BrainStorm will provide at least thirty (30) days' notice before any changes are made. Access to No Fee Content begins with the Effective Date and terminates with this Agreement independently of any Order Form.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts.
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective June 18th 2024 to October 25th 2024
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts.
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective June 18th 2024 to June 18th 2024
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts.
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective September 27th 2023 to June 18th 2024
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts.
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective April 7th 2023 to September 27th 2023
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts.
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective April 3rd 2023 to April 7th 2023
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective November 4th 2022 to April 3rd 2023
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective August 3rd 2022 to November 4th 2022
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective May 13th 2022 to August 3rd 2022
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective May 5th 2022 to May 13th 2022
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 am to 4:00 am Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 AM - 6:00 PM MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective April 15th 2022 to May 5th 2022
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between customer identified in the Order Form (“Customer”), and BrainStorm, Inc. (BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm cannot provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by the Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, or (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Services.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as the invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, and/or BrainStorm Add-ons to be provided to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, the BrainStorm Content, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customers agree to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by Third-Parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that Third-Party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its users will access and use the Subscription Services: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, or any other URLs from which BrainStorm will provide the Subscription Services, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and may be governed by separate or additional terms and conditions.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to its BrainStorm sending Customer’s Users who are designated as admins or group owners in the Subscription Service in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. The Fees are set forth in the Order Form(s) and will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), or (b) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and Fees paid are non-refundable, unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. The pricing for any Renewal Term (as defined below) may be set forth in the applicable Order Form. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for an additional, successive one (1) year term (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. Unless renewed as provided in Section 4(a) above, the Subscription Term cannot be canceled early and will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer are acting, or have acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm scheduled maintenance window is from 12:00 am to 4:00 am Mountain Time. Except as provided elsewhere in this Section 5, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in our sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide, BrainStorm will provide technical support to Customer during the Term during normal business hours of 8:00 AM - 6:00 PM MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Services and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@quickhelp.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service and any Customer Data, including, without limitation, any use of the Subscription Service and/or Customer Data that is in violation of applicable laws, regulations, Customer’s policies, and/or BrainStorm’s Privacy Policy.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, or (e) attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks.
- It will not access and use the Subscription Service if Customer is a direct competitor or are affiliated with a direct competitor of BrainStorm.
- It will not use the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- It will not upload or submit to the Subscription Service any Sensitive Information, as the Subscription Service was not designed or intended to process or manage Protected Information.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://www.brainstorminc.com/legal#privacy-policy.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consent to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data in any manner that specifically identifies Customer or its Users without Customer’s prior written consent, except as otherwise set forth in this Agreement or in our Privacy Policy.
- De-identified Usage Data. BrainStorm solely and exclusively owns all rights to such De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate such De-Identified Usage Data for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third-Party. Customer hereby consents to the BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers with whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://info.brainstorminc.com/legal#website-data, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Cloud Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Cloud Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the BrainStorm Platform or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm retains all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the Subscription Service, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7.7.
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the Subscription Service will be provided materially in accordance with BrainStorm’s published documentation for the Subscription Service, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied. If Customer promptly reports a reproducible defect under this warranty, BrainStorm shall, in its sole discretion, either use its commercially reasonable efforts to resolve the nonconformity or terminate this Agreement and refund Customer’s prepaid Fees for the unused portion of the Subscription Term.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or upload Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY PRODUCTS. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT CUSTOMER USES. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party hereto who is required to engage the Subscription Services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective April 15th 2022 to April 15th 2022
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between customer identified in the Order Form (“Customer”), and BrainStorm, Inc. (BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm cannot provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by the Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, or (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Services.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as the invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, and/or BrainStorm Add-ons to be provided to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “SubscriptionService” means the BrainStorm Platform, the BrainStorm Content, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customers agree to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by Third-Parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that Third-Party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its users will access and use the Subscription Services: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, or any other URLs from which BrainStorm will provide the Subscription Services, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and may be governed by separate or additional terms and conditions.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to its BrainStorm sending Customer’s Users who are designated as admins or group owners in the Subscription Service in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. The Fees are set forth in the Order Form(s) and will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), or (b) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and Fees paid are non-refundable, unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. The pricing for any Renewal Term (as defined below) may be set forth in the applicable Order Form. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for an additional, successive one (1) year term (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. Unless renewed as provided in Section 4(a) above, the Subscription Term cannot be canceled early and will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer are acting, or have acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm scheduled maintenance window is from 12:00 am to 4:00 am Mountain Time. Except as provided elsewhere in this Section 5, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in our sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide, BrainStorm will provide technical support to Customer during the Term during normal business hours of 8:00 AM - 6:00 PM MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Services and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@quickhelp.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service and any Customer Data, including, without limitation, any use of the Subscription Service and/or Customer Data that is in violation of applicable laws, regulations, Customer’s policies, and/or BrainStorm’s Privacy Policy.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, or (e) attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks.
- It will not access and use the Subscription Service if Customer is a direct competitor or are affiliated with a direct competitor of BrainStorm.
- It will not use the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- It will not upload or submit to the Subscription Service any Sensitive Information, as the Subscription Service was not designed or intended to process or manage Protected Information.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://www.brainstorminc.com/legal#privacy-policy.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consent to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data in any manner that specifically identifies Customer or its Users without Customer’s prior written consent, except as otherwise set forth in this Agreement or in our Privacy Policy.
- De-identified Usage Data. BrainStorm solely and exclusively owns all rights to such De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate such De-Identified Usage Data for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third-Party. Customer hereby consents to the BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers with whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://info.brainstorminc.com/legal#website-data, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Cloud Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Cloud Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the BrainStorm Platform or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm retains all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the Subscription Service, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7.7.
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the Subscription Service will be provided materially in accordance with BrainStorm’s published documentation for the Subscription Service, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied. If Customer promptly reports a reproducible defect under this warranty, BrainStorm shall, in its sole discretion, either use its commercially reasonable efforts to resolve the nonconformity or terminate this Agreement and refund Customer’s prepaid Fees for the unused portion of the Subscription Term.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or upload Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY PRODUCTS. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT CUSTOMER USES. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party hereto who is required to engage the Subscription Services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective April 15th 2022 to April 15th 2022
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between customer identified in the Order Form (“Customer”), and BrainStorm, Inc. (BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm cannot provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by the Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, or (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Services.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as the invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, and/or BrainStorm Add-ons to be provided to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “SubscriptionService” means the BrainStorm Platform, the BrainStorm Content, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customers agree to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by Third-Parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that Third-Party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its users will access and use the Subscription Services: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, or any other URLs from which BrainStorm will provide the Subscription Services, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and may be governed by separate or additional terms and conditions.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to its BrainStorm sending Customer’s Users who are designated as admins or group owners in the Subscription Service in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. The Fees are set forth in the Order Form(s) and will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), or (b) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and Fees paid are non-refundable, unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. The pricing for any Renewal Term (as defined below) may be set forth in the applicable Order Form. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for an additional, successive one (1) year term (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. Unless renewed as provided in Section 4(a) above, the Subscription Term cannot be canceled early and will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer are acting, or have acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm scheduled maintenance window is from 12:00 am to 4:00 am Mountain Time. Except as provided elsewhere in this Section 5, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in our sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide, BrainStorm will provide technical support to Customer during the Term during normal business hours of 8:00 AM - 6:00 PM MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Services and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@quickhelp.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service and any Customer Data, including, without limitation, any use of the Subscription Service and/or Customer Data that is in violation of applicable laws, regulations, Customer’s policies, and/or BrainStorm’s Privacy Policy.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, or (e) attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks.
- It will not access and use the Subscription Service if Customer is a direct competitor or are affiliated with a direct competitor of BrainStorm.
- It will not use the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- It will not upload or submit to the Subscription Service any Sensitive Information, as the Subscription Service was not designed or intended to process or manage Protected Information.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://www.brainstorminc.com/legal#privacy-policy.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consent to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data in any manner that specifically identifies Customer or its Users without Customer’s prior written consent, except as otherwise set forth in this Agreement or in our Privacy Policy.
- De-identified Usage Data. BrainStorm solely and exclusively owns all rights to such De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate such De-Identified Usage Data for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third-Party. Customer hereby consents to the BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers with whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://info.brainstorminc.com/legal#website-data, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Cloud Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Cloud Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the BrainStorm Platform or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm retains all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the Subscription Service, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7.7.
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the Subscription Service will be provided materially in accordance with BrainStorm’s published documentation for the Subscription Service, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied. If Customer promptly reports a reproducible defect under this warranty, BrainStorm shall, in its sole discretion, either use its commercially reasonable efforts to resolve the nonconformity or terminate this Agreement and refund Customer’s prepaid Fees for the unused portion of the Subscription Term.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or upload Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY PRODUCTS. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT CUSTOMER USES. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party hereto who is required to engage the Subscription Services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective April 15th 2022 to April 15th 2022
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between customer identified in the Order Form (“Customer”), and BrainStorm, Inc. (BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm cannot provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by the Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15.2 below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5.3 and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, or (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Services.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as the invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, and/or BrainStorm Add-ons to be provided to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “SubscriptionService” means the BrainStorm Platform, the BrainStorm Content, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customers agree to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by Third-Parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that Third-Party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its users will access and use the Subscription Services: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, or any other URLs from which BrainStorm will provide the Subscription Services, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and may be governed by separate or additional terms and conditions.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to its BrainStorm sending Customer’s Users who are designated as admins or group owners in the Subscription Service in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. The Fees are set forth in the Order Form(s) and will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.1.2), or (b) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and Fees paid are non-refundable, unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. The pricing for any Renewal Term (as defined below) may be set forth in the applicable Order Form. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3.5 (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for an additional, successive one (1) year term (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. Unless renewed as provided in Section 4.1 above, the Subscription Term cannot be canceled early and will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer are acting, or have acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination.
- Survival. Sections 1, 4.4, and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm scheduled maintenance window is from 12:00 am to 4:00 am Mountain Time. Except as provided elsewhere in this Section 5, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in our sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide, BrainStorm will provide technical support to Customer during the Term during normal business hours of 8:00 AM - 6:00 PM MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Services and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@quickhelp.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service and any Customer Data, including, without limitation, any use of the Subscription Service and/or Customer Data that is in violation of applicable laws, regulations, Customer’s policies, and/or BrainStorm’s Privacy Policy.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, or (e) attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks.
- It will not access and use the Subscription Service if Customer is a direct competitor or are affiliated with a direct competitor of BrainStorm.
- It will not use the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- It will not upload or submit to the Subscription Service any Sensitive Information, as the Subscription Service was not designed or intended to process or manage Protected Information.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://www.brainstorminc.com/legal#privacy-policy.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consent to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data in any manner that specifically identifies Customer or its Users without Customer’s prior written consent, except as otherwise set forth in this Agreement or in our Privacy Policy.
- De-identified Usage Data. BrainStorm solely and exclusively owns all rights to such De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate such De-Identified Usage Data for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third-Party. Customer hereby consents to the BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers with whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://info.brainstorminc.com/legal#website-data, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Cloud Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Cloud Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7.7 may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the BrainStorm Platform or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm retains all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the Subscription Service, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7.7 and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7.7.
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the Subscription Service will be provided materially in accordance with BrainStorm’s published documentation for the Subscription Service, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied. If Customer promptly reports a reproducible defect under this warranty, BrainStorm shall, in its sole discretion, either use its commercially reasonable efforts to resolve the nonconformity or terminate this Agreement and refund Customer’s prepaid Fees for the unused portion of the Subscription Term.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or upload Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY PRODUCTS. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT CUSTOMER USES. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party hereto who is required to engage the Subscription Services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, the updated terms and conditions will be posted at https://info.brainstorminc.com/legal#terms and BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
QuickHelp Subscription Agreement
Effective June 17th 2024
DownloadTable of Contents
QUICKHELP™ TERMS & CONDITIONS
- Definitions.
- “Agreement” means this Subscription Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which You agree to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if You subscribe to the Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- “BrainStorm Content” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to You via the Service or otherwise.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. Our Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to You in connection with the Service, or (b) any materials or content provided to You as part of the implementation services or any other services provided by Us.
- “Customer Data” means all data, text, information, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted or displayed on or via the Service. Customer Data will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “Fees” means the amount You agree to pay for the Service and any other services we may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as the invoice or order form, as applicable, that includes some or all of the following information: a listing of the software applications and BrainStorm Content to be provided to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Service, and any maintenance and support being purchased (if applicable).
- “Service” means the online, cloud-based software application(s) and BrainStorm Content that are identified in the Order Form as being included in Customer’s purchase and that are provided by BrainStorm to Customer via the website https://www.quickhelp.com.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Your subscription (or access) to the Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which You agree to pay (or prepay) the Fees under an Order Form.
- “Users” means individuals who are authorized by Customer to access and use the Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors and agents of Customer.
- General Commercial Terms
- The Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Your payment of the applicable Fees, BrainStorm will provide You with access to the Service via the Internet during the Subscription Term. You understand and agree that Your purchase of a subscription to the Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Maximum Authorized Users. The Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. You may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase. This review and increase process will continue for each year of Your Subscription Term
- Fees and Payment.
- Subscription Fees. The Fees are set forth in the Order Form and will remain fixed during Your Subscription Term unless (a) You exceed Your maximum Users (see Section 2(a)(b)), or (b) You and BrainStorm mutually agree in writing to modify or amend the Order Form. All payment obligations hereunder are non-cancelable, and Fees paid are non-refundable, unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. The pricing for any Renewal Term (as defined below) may be set forth in Your Order Form. If Your Order Form does not include any pricing for a Renewal Term, then BrainStorm’s standard pricing available at the date of renewal will apply. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If You are paying by credit card, You authorize Us to charge Your credit card or bank account for all Fees payable during the Subscription Term. You further authorize Us to use a third party to process payments, and consent to the disclosure of Your payment information to such third party.
- Invoices. BrainStorm will invoice You in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then Your Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Service. BrainStorm will provide You with notice of non-payment of any amount due. If Your Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Your access to the Service (or any portion thereof) until such amounts are paid in full.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 2(b)(e) (Late Fees), or its right to suspend Your access to the Service under Section 2(b)(f) (Suspension of the Service), if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
- Taxes. You agree to pay all applicable taxes levied by any tax authority on the Service or on Your use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Additional BrainStorm Obligations.
- Maintenance and Support. In addition to the ongoing customer service support that BrainStorm will provide via a Client Success Manager, BrainStorm will provide product support during normal business hours of 8:00 AM - 6:00 PM MST, Monday through Friday, excluding holidays. Support is limited to the points of contact agreed to by the Parties (such as Your designated QuickHelp™ admins) and is generally not available directly to Your Users. You may contact BrainStorm by calling the support helpdesk at 801-229-1337 or sending an email to qhsupport@brainstorminc.com. Except as provided in this Section 2(c), BrainStorm will not have any other maintenance or support obligations to You.
- Updates to the Service. BrainStorm will support, maintain, upgrade, and update the Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement.
- Term and Termination.
- Term and Renewal. Your initial Subscription Term will be specified in Your Order Form (the “Initial Term”). Immediately following the Initial Term, Your subscription to the Service will automatically renew for an additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. You may notify BrainStorm of Your intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. Unless renewed as provided in Section 2(d)(a) above, the Subscription Term cannot be cancelled early and will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if You decide to stop using the Service during Your Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if We determine that You are acting, or have acted, in a way that has or may negatively reflect on or affect Us, Our prospects, or Our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If You terminate this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, You will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve You of Your obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination.
- Survival. Sections 1, 2(d)(d), 3, 4, 5 and 6 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- The Service.
- General Legal Terms
- Service Data
- Customer Data. As between the Parties, You own and retain all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Service to You and only as permitted by applicable law, this Agreement, and Our Privacy Policy, available at info.brainstorminc.com/legal/#privacy-policy. By importing or processing Customer Data in the Service, You grant BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Service. BrainStorm will not use, display, disclose or transfer Customer Data in any manner that specifically identifies Customer or its Users without Your prior written consent, except as otherwise set forth in Section 4 herein or in our Privacy Policy.
- De-Identified Data. BrainStorm monitors its Customers’ use of the Service and uses the information gathered for internal purposes in an aggregated and anonymous manner to improve the Service and BrainStorm Content. Notwithstanding any provision of this Agreement to the contrary, You hereby grant to BrainStorm an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, anonymize, and display, both during and after the Subscription Term, any usage statistics, usage data, or metadata We derive from Your or Your Users’ use of the Service, including any reports You share with Us from Your use of Microsoft Graph API, in order (i) to improve the Service, (ii) to produce and share aggregated insights from the usage statistics or usage data, or (iii) compare usage and adoption rates of Yours and others organizations; provided that BrainStorm will only use such usage statistics and usage data in an anonymized, de-identified or aggregated form (“De-Identified Data”), but only so long as the De-Identified Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws). To be clear, Customer Data does not include De-Identified Data. In no event will BrainStorm disclose or provide Customer Data or Your identity to third parties, except as provided in this Agreement or BrainStorm’s Privacy Policy.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Your behalf, in the provision of the Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://info.brainstorminc.com/legal#website-data, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by Us under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. You acknowledge in all cases that BrainStorm acts as the data processor of Customer Data and You are the data controller of Customer Data under all applicable data protection laws or regulations. You agree that, to the extent required, you have a lawful basis for the processing of the Personal Data. You also agree to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Service, and You are not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and Our licensors (if any), and We retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance are You permitted to remove any copyright notice from the Service. “QuickHelp” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Service.
- Suggestions. We encourage all Customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Service or its operation (“Suggestions”). You agree that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Service, without payment or attribution to You. Any Suggestions incorporated into the Service shall not contain any Customer Data.
- Customer Responsibilities and Restrictions.
- You agree that:
- You and Your Users will comply with BrainStorm’s Privacy Policy, located at https://info.brainstorminc.com/legal#privacy-policy, and its Content Submission Policy, which can be accessed at https://info.brainstorminc.com/legal#content-submission, as well as all applicable laws and regulations. You will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by Your Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- You will not attempt or permit others to attempt to gain unauthorized access to or use of the Service and will notify BrainStorm promptly of any known or suspected unauthorized access or use. You will notify BrainStorm immediately of any known or suspected unauthorized use of Your Users’ identifications and passwords or Your account by contacting support@quickhelp.com.
- You will be responsible for Your and Your Users’ use of the Service and any Customer Data, including, without limitation, any use of the Service and/or Customer Data that is in violation of applicable laws, regulations, Your policies, and/or BrainStorm’s Privacy Policy.
- You will not make access to or use of the Service and/or Customer Data a condition of any User’s employment if such a requirement would violate any privacy or security law or regulation. If User consents are required for You to provide to Us, or for Us to access or use, any Customer Data, You will be solely responsible for obtaining and documenting such consents and ensuring that such consents are freely and validly provided by each User. You will make such records of consents available to BrainStorm upon request.
- You will not (a) make the Service available to anyone other than Your Users, (b) sell, resell, rent or lease the Service, (c) interfere with or disrupt the integrity or performance of the Service or any of its content, or (d) attempt to gain unauthorized access to the Service’s underlying systems or networks.
- You may not access and use the Service if You are a direct competitor or are affiliated with a direct competitor of BrainStorm.
- You will not use the Service if You are legally prohibited from receiving or using the Service under the laws of the country in which You are a resident or from which You access or use the Service. The Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so You may not use the Service or upload Customer Data to the Service where Your use would be subject to such laws.
- YOU AGREE NOT TO USE THE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. YOU FURTHER AGREE THAT YOU WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO US. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
- You will only access or use the Service as expressly permitted by this Agreement.
- You will not copy, rent, lease, sell, distribute, or create derivative works based on the Service or BrainStorm Content, in whole or in part, by any means and for any reason whatsoever, except as expressly authorized in writing by BrainStorm.
- The Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- You agree that:
- Confidentiality. Each Party (as a Receiver), agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the Service, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 3(c) and BrainStorm’s Content Submission Policy, located at https://info.brainstorminc.com/legal#content-submission and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Sections 3(c) and BrainStorm’s Content Submission Policy, located at https://info.brainstorminc.com/legal#content-submission.
- Indemnification for Unauthorized Use. You agree to defend, indemnify, and hold BrainStorm harmless from and against any and all claims arising out of Your unauthorized use of the Service or other breach of this Agreement.
- Remedy for Infringement. Should Your right to use the Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for You the right to continue to access and use the Service; (ii) modify the Service to render it non-infringing but substantially functionally equivalent to the Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to You any amounts prepaid by You for the Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the Service will be provided materially in accordance with BrainStorm’s published documentation for the Service, as found on BrainStorm’s websites, www.brainstorminc.com, support.quickhelp.com, and www.quickhelp.com. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Service has been modified or altered by anyone other than BrainStorm, or if the Service has been abused or misapplied. If You promptly report a reproducible defect under this warranty, BrainStorm shall, in its sole discretion, either use its commercially reasonable efforts to resolve the nonconformity or terminate this Agreement and refund Your prepaid Fees for the unused portion of the Subscription Term.
- Customer Warranties. When You share Customer Data with BrainStorm or upload Customer Data to the Service, You represent and warrant that You are the creator and owner of, or that You have the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute, Customer Data as necessary for BrainStorm to provide You with access to the Service and to otherwise perform its obligations under this Agreement.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, QUICKHELP IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT QUICKHELP WILL SATISFY YOUR REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT YOUR ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR QUICKHELP DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT YOUR OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. YOU ACKNOWLEDGE THAT THE AMOUNT OF FEES PAYABLE BY YOU TO BRAINSTORM HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY PRODUCTS. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- Service Data
- Publicity. You agree that BrainStorm may disclose Your company’s name, whether in written or oral form, as a user of the Service in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party hereto who is required to engage the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the BrainStorm Privacy Policy, and the BrainStorm Acceptable Use Policy together constitute the entire agreement between the Parties for the provision of and access to the Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. We object to and reject any additional or different terms proposed by You, including those contained in Your purchase order, acceptance or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Service (but, Your Fees and charges won’t change during the Subscription Term except as explained in the Fees section above). If We update or change these terms and conditions, the updated terms and conditions will be posted at https://info.brainstorminc.com/legal#terms and We will let You know via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If You do not agree with a modification to this Agreement, You must notify Us in writing within thirty (30) days after receiving notice of the modification. If You give Us this notice, Your subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Your current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. You may not assign, sublicense, or transfer this Agreement, Your access to the Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing You written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form, You agree that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other event outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth in the Order Form, or unless otherwise indicated in writing, and will be deemed delivered as of the date of actual receipt.
- Injunctive Relief. You hereby expressly agree that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. You will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Your compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to You.
- Service Supplied to the Government. The Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. You will not export or re-export or allow the export or re-export of the Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective August 30th 2023 to June 17th 2024
DownloadTable of Contents
QUICKHELP™ TERMS & CONDITIONS
- Definitions.
- “Agreement” means this Subscription Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which You agree to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if You subscribe to the Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- “BrainStorm Content” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to You via the Service or otherwise.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. Our Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to You in connection with the Service, or (b) any materials or content provided to You as part of the implementation services or any other services provided by Us.
- “Customer Data” means all data, text, information, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted or displayed on or via the Service. Customer Data will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “Fees” means the amount You agree to pay for the Service and any other services we may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as the invoice or order form, as applicable, that includes some or all of the following information: a listing of the software applications and BrainStorm Content to be provided to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Service, and any maintenance and support being purchased (if applicable).
- “Service” means the online, cloud-based software application(s) and BrainStorm Content that are identified in the Order Form as being included in Customer’s purchase and that are provided by BrainStorm to Customer via the website https://www.quickhelp.com.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Your subscription (or access) to the Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which You agree to pay (or prepay) the Fees under an Order Form.
- “Users” means individuals who are authorized by Customer to access and use the Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors and agents of Customer.
- General Commercial Terms
- The Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Your payment of the applicable Fees, BrainStorm will provide You with access to the Service via the Internet during the Subscription Term. You understand and agree that Your purchase of a subscription to the Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Maximum Authorized Users. The Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. You may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase. This review and increase process will continue for each year of Your Subscription Term
- Fees and Payment.
- Subscription Fees. The Fees are set forth in the Order Form and will remain fixed during Your Subscription Term unless (a) You exceed Your maximum Users (see Section 2(a)(b)), or (b) You and BrainStorm mutually agree in writing to modify or amend the Order Form. All payment obligations hereunder are non-cancelable, and Fees paid are non-refundable, unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. The pricing for any Renewal Term (as defined below) may be set forth in Your Order Form. If Your Order Form does not include any pricing for a Renewal Term, then BrainStorm’s standard pricing available at the date of renewal will apply. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If You are paying by credit card, You authorize Us to charge Your credit card or bank account for all Fees payable during the Subscription Term. You further authorize Us to use a third party to process payments, and consent to the disclosure of Your payment information to such third party.
- Invoices. BrainStorm will invoice You in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then Your Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Service. BrainStorm will provide You with notice of non-payment of any amount due. If Your Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Your access to the Service (or any portion thereof) until such amounts are paid in full.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 2(b)(e) (Late Fees), or its right to suspend Your access to the Service under Section 2(b)(f) (Suspension of the Service), if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
- Taxes. You agree to pay all applicable taxes levied by any tax authority on the Service or on Your use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Additional BrainStorm Obligations.
- Maintenance and Support. In addition to the ongoing customer service support that BrainStorm will provide via a Client Success Manager, BrainStorm will provide product support during normal business hours of 8:00 AM - 6:00 PM MST, Monday through Friday, excluding holidays. Support is limited to the points of contact agreed to by the Parties (such as Your designated QuickHelp™ admins) and is generally not available directly to Your Users. You may contact BrainStorm by calling the support helpdesk at 801-229-1337 or sending an email to qhsupport@brainstorminc.com. Except as provided in this Section 2(c), BrainStorm will not have any other maintenance or support obligations to You.
- Updates to the Service. BrainStorm will support, maintain, upgrade, and update the Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement.
- Term and Termination.
- Term and Renewal. Your initial Subscription Term will be specified in Your Order Form (the “Initial Term”). Immediately following the Initial Term, Your subscription to the Service will automatically renew for an additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. You may notify BrainStorm of Your intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. Unless renewed as provided in Section 2(d)(a) above, the Subscription Term cannot be cancelled early and will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if You decide to stop using the Service during Your Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if We determine that You are acting, or have acted, in a way that has or may negatively reflect on or affect Us, Our prospects, or Our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If You terminate this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, You will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve You of Your obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination.
- Survival. Sections 1, 2(d)(d), 3, 4, 5 and 6 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- The Service.
- General Legal Terms
- Service Data
- Customer Data. As between the Parties, You own and retain all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Service to You and only as permitted by applicable law, this Agreement, and Our Privacy Policy, available at info.brainstorminc.com/legal/#privacy-policy. By importing or processing Customer Data in the Service, You grant BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Service. BrainStorm will not use, display, disclose or transfer Customer Data in any manner that specifically identifies Customer or its Users without Your prior written consent, except as otherwise set forth in Section 4 herein or in our Privacy Policy.
- De-Identified Data. BrainStorm monitors its Customers’ use of the Service and uses the information gathered for internal purposes in an aggregated and anonymous manner to improve the Service and BrainStorm Content. Notwithstanding any provision of this Agreement to the contrary, You hereby grant to BrainStorm an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, anonymize, and display, both during and after the Subscription Term, any usage statistics, usage data, or metadata We derive from Your or Your Users’ use of the Service, including any reports You share with Us from Your use of Microsoft Graph API, in order (i) to improve the Service, (ii) to produce and share aggregated insights from the usage statistics or usage data, or (iii) compare usage and adoption rates of Yours and others organizations; provided that BrainStorm will only use such usage statistics and usage data in an anonymized, de-identified or aggregated form (“De-Identified Data”), but only so long as the De-Identified Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws). To be clear, Customer Data does not include De-Identified Data. In no event will BrainStorm disclose or provide Customer Data or Your identity to third parties, except as provided in this Agreement or BrainStorm’s Privacy Policy.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Your behalf, in the provision of the Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://info.brainstorminc.com/legal#website-data, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by Us under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. You acknowledge in all cases that BrainStorm acts as the data processor of Customer Data and You are the data controller of Customer Data under all applicable data protection laws or regulations. You agree that, to the extent required, you have a lawful basis for the processing of the Personal Data. You also agree to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Service, and You are not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and Our licensors (if any), and We retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance are You permitted to remove any copyright notice from the Service. “QuickHelp” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Service.
- Suggestions. We encourage all Customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Service or its operation (“Suggestions”). You agree that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Service, without payment or attribution to You. Any Suggestions incorporated into the Service shall not contain any Customer Data.
- Customer Responsibilities and Restrictions.
- You agree that:
- You and Your Users will comply with BrainStorm’s Privacy Policy, located at https://info.brainstorminc.com/legal#privacy-policy, and its Content Submission Policy, which can be accessed at https://info.brainstorminc.com/legal#content-submission, as well as all applicable laws and regulations. You will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by Your Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- You will not attempt or permit others to attempt to gain unauthorized access to or use of the Service and will notify BrainStorm promptly of any known or suspected unauthorized access or use. You will notify BrainStorm immediately of any known or suspected unauthorized use of Your Users’ identifications and passwords or Your account by contacting support@quickhelp.com.
- You will be responsible for Your and Your Users’ use of the Service and any Customer Data, including, without limitation, any use of the Service and/or Customer Data that is in violation of applicable laws, regulations, Your policies, and/or BrainStorm’s Privacy Policy.
- You will not make access to or use of the Service and/or Customer Data a condition of any User’s employment if such a requirement would violate any privacy or security law or regulation. If User consents are required for You to provide to Us, or for Us to access or use, any Customer Data, You will be solely responsible for obtaining and documenting such consents and ensuring that such consents are freely and validly provided by each User. You will make such records of consents available to BrainStorm upon request.
- You will not (a) make the Service available to anyone other than Your Users, (b) sell, resell, rent or lease the Service, (c) interfere with or disrupt the integrity or performance of the Service or any of its content, or (d) attempt to gain unauthorized access to the Service’s underlying systems or networks.
- You may not access and use the Service if You are a direct competitor or are affiliated with a direct competitor of BrainStorm.
- You will not use the Service if You are legally prohibited from receiving or using the Service under the laws of the country in which You are a resident or from which You access or use the Service. The Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so You may not use the Service or upload Customer Data to the Service where Your use would be subject to such laws.
- YOU AGREE NOT TO USE THE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. YOU FURTHER AGREE THAT YOU WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO US. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
- You will only access or use the Service as expressly permitted by this Agreement.
- You will not copy, rent, lease, sell, distribute, or create derivative works based on the Service or BrainStorm Content, in whole or in part, by any means and for any reason whatsoever, except as expressly authorized in writing by BrainStorm.
- The Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- You agree that:
- Confidentiality. Each Party (as a Receiver), agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the Service, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 3(c) and BrainStorm’s Content Submission Policy, located at https://info.brainstorminc.com/legal#content-submission and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Sections 3(c) and BrainStorm’s Content Submission Policy, located at https://info.brainstorminc.com/legal#content-submission.
- Indemnification for Unauthorized Use. You agree to defend, indemnify, and hold BrainStorm harmless from and against any and all claims arising out of Your unauthorized use of the Service or other breach of this Agreement.
- Remedy for Infringement. Should Your right to use the Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for You the right to continue to access and use the Service; (ii) modify the Service to render it non-infringing but substantially functionally equivalent to the Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to You any amounts prepaid by You for the Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the Service will be provided materially in accordance with BrainStorm’s published documentation for the Service, as found on BrainStorm’s websites, www.brainstorminc.com, support.quickhelp.com, and www.quickhelp.com. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Service has been modified or altered by anyone other than BrainStorm, or if the Service has been abused or misapplied. If You promptly report a reproducible defect under this warranty, BrainStorm shall, in its sole discretion, either use its commercially reasonable efforts to resolve the nonconformity or terminate this Agreement and refund Your prepaid Fees for the unused portion of the Subscription Term.
- Customer Warranties. When You share Customer Data with BrainStorm or upload Customer Data to the Service, You represent and warrant that You are the creator and owner of, or that You have the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute, Customer Data as necessary for BrainStorm to provide You with access to the Service and to otherwise perform its obligations under this Agreement.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, QUICKHELP IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT QUICKHELP WILL SATISFY YOUR REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT YOUR ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR QUICKHELP DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT YOUR OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. YOU ACKNOWLEDGE THAT THE AMOUNT OF FEES PAYABLE BY YOU TO BRAINSTORM HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY PRODUCTS. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- Service Data
- Publicity. You agree that BrainStorm may disclose Your company’s name, whether in written or oral form, as a user of the Service in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party hereto who is required to engage the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the BrainStorm Privacy Policy, and the BrainStorm Acceptable Use Policy together constitute the entire agreement between the Parties for the provision of and access to the Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. We object to and reject any additional or different terms proposed by You, including those contained in Your purchase order, acceptance or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Service (but, Your Fees and charges won’t change during the Subscription Term except as explained in the Fees section above). If We update or change these terms and conditions, the updated terms and conditions will be posted at https://info.brainstorminc.com/legal#terms and We will let You know via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If You do not agree with a modification to this Agreement, You must notify Us in writing within thirty (30) days after receiving notice of the modification. If You give Us this notice, Your subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Your current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. You may not assign, sublicense, or transfer this Agreement, Your access to the Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing You written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form, You agree that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other event outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth in the Order Form, or unless otherwise indicated in writing, and will be deemed delivered as of the date of actual receipt.
- Injunctive Relief. You hereby expressly agree that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. You will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Your compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to You.
- Service Supplied to the Government. The Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. You will not export or re-export or allow the export or re-export of the Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective August 30th 2023 to August 30th 2023
DownloadTable of Contents
QUICKHELP™ TERMS & CONDITIONS
- Definitions.
- “Agreement” means this Subscription Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which You agree to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if You subscribe to the Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- “BrainStorm Content” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to You via the Service or otherwise.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. Our Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to You in connection with the Service, or (b) any materials or content provided to You as part of the implementation services or any other services provided by Us.
- “Customer Data” means all data, text, information, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted or displayed on or via the Service. Customer Data will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “Fees” means the amount You agree to pay for the Service and any other services we may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as the invoice or order form, as applicable, that includes some or all of the following information: a listing of the software applications and BrainStorm Content to be provided to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Service, and any maintenance and support being purchased (if applicable).
- “Service” means the online, cloud-based software application(s) and BrainStorm Content that are identified in the Order Form as being included in Customer’s purchase and that are provided by BrainStorm to Customer via the website https://www.quickhelp.com.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Your subscription (or access) to the Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which You agree to pay (or prepay) the Fees under an Order Form.
- “Users” means individuals who are authorized by Customer to access and use the Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors and agents of Customer.
- General Commercial Terms
- The Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Your payment of the applicable Fees, BrainStorm will provide You with access to the Service via the Internet during the Subscription Term. You understand and agree that Your purchase of a subscription to the Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Maximum Authorized Users. The Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. You may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase. This review and increase process will continue for each year of Your Subscription Term
- Fees and Payment.
- Subscription Fees. The Fees are set forth in the Order Form and will remain fixed during Your Subscription Term unless (a) You exceed Your maximum Users (see Section 2(a)(b)), or (b) You and BrainStorm mutually agree in writing to modify or amend the Order Form. All payment obligations hereunder are non-cancelable, and Fees paid are non-refundable, unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. The pricing for any Renewal Term (as defined below) may be set forth in Your Order Form. If Your Order Form does not include any pricing for a Renewal Term, then BrainStorm’s standard pricing available at the date of renewal will apply. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If You are paying by credit card, You authorize Us to charge Your credit card or bank account for all Fees payable during the Subscription Term. You further authorize Us to use a third party to process payments, and consent to the disclosure of Your payment information to such third party.
- Invoices. BrainStorm will invoice You in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then Your Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Service. BrainStorm will provide You with notice of non-payment of any amount due. If Your Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Your access to the Service (or any portion thereof) until such amounts are paid in full.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 2(b)(e) (Late Fees), or its right to suspend Your access to the Service under Section 2(b)(f) (Suspension of the Service), if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
- Taxes. You agree to pay all applicable taxes levied by any tax authority on the Service or on Your use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Additional BrainStorm Obligations.
- Maintenance and Support. In addition to the ongoing customer service support that BrainStorm will provide via a Client Success Manager, BrainStorm will provide product support during normal business hours of 8:00 AM - 6:00 PM MST, Monday through Friday, excluding holidays. Support is limited to the points of contact agreed to by the Parties (such as Your designated QuickHelp™ admins) and is generally not available directly to Your Users. You may contact BrainStorm by calling the support helpdesk at 801-229-1337 or sending an email to qhsupport@brainstorminc.com. Except as provided in this Section 2(c), BrainStorm will not have any other maintenance or support obligations to You.
- Updates to the Service. BrainStorm will support, maintain, upgrade, and update the Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement.
- Term and Termination.
- Term and Renewal. Your initial Subscription Term will be specified in Your Order Form (the “Initial Term”). Immediately following the Initial Term, Your subscription to the Service will automatically renew for an additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. You may notify BrainStorm of Your intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. Unless renewed as provided in Section 2(d)(a) above, the Subscription Term cannot be cancelled early and will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if You decide to stop using the Service during Your Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if We determine that You are acting, or have acted, in a way that has or may negatively reflect on or affect Us, Our prospects, or Our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If You terminate this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, You will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve You of Your obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination.
- Survival. Sections 1, 2(d)(d), 3, 4, 5 and 6 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- The Service.
- General Legal Terms
- Service Data
- Customer Data. As between the Parties, You own and retain all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Service to You and only as permitted by applicable law, this Agreement, and Our Privacy Policy, available at info.brainstorminc.com/legal/#privacy-policy. By importing or processing Customer Data in the Service, You grant BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Service. BrainStorm will not use, display, disclose or transfer Customer Data in any manner that specifically identifies Customer or its Users without Your prior written consent, except as otherwise set forth in Section 4 herein or in our Privacy Policy.
- De-Identified Data. BrainStorm monitors its Customers’ use of the Service and uses the information gathered for internal purposes in an aggregated and anonymous manner to improve the Service and BrainStorm Content. Notwithstanding any provision of this Agreement to the contrary, You hereby grant to BrainStorm an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, anonymize, and display, both during and after the Subscription Term, any usage statistics, usage data, or metadata We derive from Your or Your Users’ use of the Service, including any reports You share with Us from Your use of Microsoft Graph API, in order (i) to improve the Service, (ii) to produce and share aggregated insights from the usage statistics or usage data, or (iii) compare usage and adoption rates of Yours and others organizations; provided that BrainStorm will only use such usage statistics and usage data in an anonymized, de-identified or aggregated form (“De-Identified Data”), but only so long as the De-Identified Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws). To be clear, Customer Data does not include De-Identified Data. In no event will BrainStorm disclose or provide Customer Data or Your identity to third parties, except as provided in this Agreement or BrainStorm’s Privacy Policy.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Your behalf, in the provision of the Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://info.brainstorminc.com/legal#website-data, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by Us under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. You acknowledge in all cases that BrainStorm acts as the data processor of Customer Data and You are the data controller of Customer Data under all applicable data protection laws or regulations. You agree that, to the extent required, you have a lawful basis for the processing of the Personal Data. You also agree to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Service, and You are not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and Our licensors (if any), and We retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance are You permitted to remove any copyright notice from the Service. “QuickHelp” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Service.
- Suggestions. We encourage all Customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Service or its operation (“Suggestions”). You agree that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Service, without payment or attribution to You. Any Suggestions incorporated into the Service shall not contain any Customer Data.
- Customer Responsibilities and Restrictions.
- You agree that:
- You and Your Users will comply with BrainStorm’s Privacy Policy, located at https://info.brainstorminc.com/legal#privacy-policy, and its Content Submission Policy, which can be accessed at https://info.brainstorminc.com/legal#content-submission, as well as all applicable laws and regulations. You will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by Your Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- You will not attempt or permit others to attempt to gain unauthorized access to or use of the Service and will notify BrainStorm promptly of any known or suspected unauthorized access or use. You will notify BrainStorm immediately of any known or suspected unauthorized use of Your Users’ identifications and passwords or Your account by contacting support@quickhelp.com.
- You will be responsible for Your and Your Users’ use of the Service and any Customer Data, including, without limitation, any use of the Service and/or Customer Data that is in violation of applicable laws, regulations, Your policies, and/or BrainStorm’s Privacy Policy.
- You will not make access to or use of the Service and/or Customer Data a condition of any User’s employment if such a requirement would violate any privacy or security law or regulation. If User consents are required for You to provide to Us, or for Us to access or use, any Customer Data, You will be solely responsible for obtaining and documenting such consents and ensuring that such consents are freely and validly provided by each User. You will make such records of consents available to BrainStorm upon request.
- You will not (a) make the Service available to anyone other than Your Users, (b) sell, resell, rent or lease the Service, (c) interfere with or disrupt the integrity or performance of the Service or any of its content, or (d) attempt to gain unauthorized access to the Service’s underlying systems or networks.
- You may not access and use the Service if You are a direct competitor or are affiliated with a direct competitor of BrainStorm.
- You will not use the Service if You are legally prohibited from receiving or using the Service under the laws of the country in which You are a resident or from which You access or use the Service. The Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so You may not use the Service or upload Customer Data to the Service where Your use would be subject to such laws.
- YOU AGREE NOT TO USE THE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. YOU FURTHER AGREE THAT YOU WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO US. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
- You will only access or use the Service as expressly permitted by this Agreement.
- You will not copy, rent, lease, sell, distribute, or create derivative works based on the Service or BrainStorm Content, in whole or in part, by any means and for any reason whatsoever, except as expressly authorized in writing by BrainStorm.
- The Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- You agree that:
- Confidentiality. Each Party (as a Receiver), agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the Service, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 3(c) and BrainStorm’s Content Submission Policy, located at https://info.brainstorminc.com/legal#content-submission and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Sections 3(c) and BrainStorm’s Content Submission Policy, located at https://info.brainstorminc.com/legal#content-submission.
- Indemnification for Unauthorized Use. You agree to defend, indemnify, and hold BrainStorm harmless from and against any and all claims arising out of Your unauthorized use of the Service or other breach of this Agreement.
- Remedy for Infringement. Should Your right to use the Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for You the right to continue to access and use the Service; (ii) modify the Service to render it non-infringing but substantially functionally equivalent to the Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to You any amounts prepaid by You for the Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the Service will be provided materially in accordance with BrainStorm’s published documentation for the Service, as found on BrainStorm’s websites, www.brainstorminc.com, support.quickhelp.com, and www.quickhelp.com. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Service has been modified or altered by anyone other than BrainStorm, or if the Service has been abused or misapplied. If You promptly report a reproducible defect under this warranty, BrainStorm shall, in its sole discretion, either use its commercially reasonable efforts to resolve the nonconformity or terminate this Agreement and refund Your prepaid Fees for the unused portion of the Subscription Term.
- Customer Warranties. When You share Customer Data with BrainStorm or upload Customer Data to the Service, You represent and warrant that You are the creator and owner of, or that You have the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute, Customer Data as necessary for BrainStorm to provide You with access to the Service and to otherwise perform its obligations under this Agreement.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, QUICKHELP IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT QUICKHELP WILL SATISFY YOUR REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT YOUR ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR QUICKHELP DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT YOUR OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. YOU ACKNOWLEDGE THAT THE AMOUNT OF FEES PAYABLE BY YOU TO BRAINSTORM HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY PRODUCTS. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- Service Data
- Publicity. You agree that BrainStorm may disclose Your company’s name, whether in written or oral form, as a user of the Service in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party hereto who is required to engage the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the BrainStorm Privacy Policy, and the BrainStorm Acceptable Use Policy together constitute the entire agreement between the Parties for the provision of and access to the Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. We object to and reject any additional or different terms proposed by You, including those contained in Your purchase order, acceptance or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Service (but, Your Fees and charges won’t change during the Subscription Term except as explained in the Fees section above). If We update or change these terms and conditions, the updated terms and conditions will be posted at https://info.brainstorminc.com/legal#terms and We will let You know via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If You do not agree with a modification to this Agreement, You must notify Us in writing within thirty (30) days after receiving notice of the modification. If You give Us this notice, Your subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Your current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. You may not assign, sublicense, or transfer this Agreement, Your access to the Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing You written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form, You agree that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other event outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth in the Order Form, or unless otherwise indicated in writing, and will be deemed delivered as of the date of actual receipt.
- Injunctive Relief. You hereby expressly agree that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. You will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Your compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to You.
- Service Supplied to the Government. The Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. You will not export or re-export or allow the export or re-export of the Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective August 21st 2023 to August 30th 2023
DownloadTable of Contents
QuickHelp™ Terms & Conditions
- Definitions.
- “Agreement” means this Subscription Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which You agree to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if You subscribe to the Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- “BrainStorm Content” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to You via the Service or otherwise.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. Our Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to You in connection with the Service, or (b) any materials or content provided to You as part of the implementation services or any other services provided by Us.
- “Customer Data” means all data, text, information, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted or displayed on or via the Service. Customer Data will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “Fees” means the amount You agree to pay for the Service and any other services we may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as the invoice or order form, as applicable, that includes some or all of the following information: a listing of the software applications and BrainStorm Content to be provided to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Service, and any maintenance and support being purchased (if applicable).
- “Service” means the online, cloud-based software application(s) and BrainStorm Content that are identified in the Order Form as being included in Customer’s purchase and that are provided by BrainStorm to Customer via the website https://www.quickhelp.com.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Your subscription (or access) to the Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which You agree to pay (or prepay) the Fees under an Order Form.
- “Users” means individuals who are authorized by Customer to access and use the Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors and agents of Customer.
- General Commercial Terms
- The Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Your payment of the applicable Fees, BrainStorm will provide You with access to the Service via the Internet during the Subscription Term. You understand and agree that Your purchase of a subscription to the Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Maximum Authorized Users. The Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. You may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase. This review and increase process will continue for each year of Your Subscription Term
- Fees and Payment.
- Subscription Fees. The Fees are set forth in the Order Form and will remain fixed during Your Subscription Term unless (a) You exceed Your maximum Users (see Section 2(a)(b)), or (b) You and BrainStorm mutually agree in writing to modify or amend the Order Form. All payment obligations hereunder are non-cancelable, and Fees paid are non-refundable, unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. The pricing for any Renewal Term (as defined below) may be set forth in Your Order Form. If Your Order Form does not include any pricing for a Renewal Term, then BrainStorm’s standard pricing available at the date of renewal will apply. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If You are paying by credit card, You authorize Us to charge Your credit card or bank account for all Fees payable during the Subscription Term. You further authorize Us to use a third party to process payments, and consent to the disclosure of Your payment information to such third party.
- Invoices. BrainStorm will invoice You in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then Your Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Service. BrainStorm will provide You with notice of non-payment of any amount due. If Your Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Your access to the Service (or any portion thereof) until such amounts are paid in full.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 2(b)(e) (Late Fees), or its right to suspend Your access to the Service under Section 2(b)(f) (Suspension of the Service), if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
- Taxes. You agree to pay all applicable taxes levied by any tax authority on the Service or on Your use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Additional BrainStorm Obligations.
- Maintenance and Support. In addition to the ongoing customer service support that BrainStorm will provide via a Client Success Manager, BrainStorm will provide product support during normal business hours of 8:00 AM - 6:00 PM MST, Monday through Friday, excluding holidays. Support is limited to the points of contact agreed to by the Parties (such as Your designated QuickHelp™ admins) and is generally not available directly to Your Users. You may contact BrainStorm by calling the support helpdesk at 801-229-1337 or sending an email to qhsupport@brainstorminc.com. Except as provided in this Section 2(c), BrainStorm will not have any other maintenance or support obligations to You.
- Updates to the Service. BrainStorm will support, maintain, upgrade, and update the Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement.
- Term and Termination.
- Term and Renewal. Your initial Subscription Term will be specified in Your Order Form (the “Initial Term”). Immediately following the Initial Term, Your subscription to the Service will automatically renew for an additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. You may notify BrainStorm of Your intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. Unless renewed as provided in Section 2(d)(a) above, the Subscription Term cannot be cancelled early and will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if You decide to stop using the Service during Your Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if We determine that You are acting, or have acted, in a way that has or may negatively reflect on or affect Us, Our prospects, or Our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If You terminate this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, You will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve You of Your obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination.
- Survival. Sections 1, 2(d)(d), 3, 4, 5 and 6 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- The Service.
- General Legal Terms
- Service Data
- Customer Data. As between the Parties, You own and retain all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Service to You and only as permitted by applicable law, this Agreement, and Our Privacy Policy, available at info.brainstorminc.com/legal/#privacy-policy. By importing or processing Customer Data in the Service, You grant BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Service. BrainStorm will not use, display, disclose or transfer Customer Data in any manner that specifically identifies Customer or its Users without Your prior written consent, except as otherwise set forth in Section 4 herein or in our Privacy Policy.
- De-Identified Data. BrainStorm monitors its Customers’ use of the Service and uses the information gathered for internal purposes in an aggregated and anonymous manner to improve the Service and BrainStorm Content. Notwithstanding any provision of this Agreement to the contrary, You hereby grant to BrainStorm an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, anonymize, and display, both during and after the Subscription Term, any usage statistics, usage data, or metadata We derive from Your or Your Users’ use of the Service, including any reports You share with Us from Your use of Microsoft Graph API, in order (i) to improve the Service, (ii) to produce and share aggregated insights from the usage statistics or usage data, or (iii) compare usage and adoption rates of Yours and others organizations; provided that BrainStorm will only use such usage statistics and usage data in an anonymized, de-identified or aggregated form (“De-Identified Data”), but only so long as the De-Identified Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws). To be clear, Customer Data does not include De-Identified Data. In no event will BrainStorm disclose or provide Customer Data or Your identity to third parties, except as provided in this Agreement or BrainStorm’s Privacy Policy.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Your behalf, in the provision of the Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://info.brainstorminc.com/legal#website-data, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by Us under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. You acknowledge in all cases that BrainStorm acts as the data processor of Customer Data and You are the data controller of Customer Data under all applicable data protection laws or regulations. You agree that, to the extent required, you have a lawful basis for the processing of the Personal Data. You also agree to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Service, and You are not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and Our licensors (if any), and We retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance are You permitted to remove any copyright notice from the Service. “QuickHelp” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Service.
- Suggestions. We encourage all Customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Service or its operation (“Suggestions”). You agree that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Service, without payment or attribution to You. Any Suggestions incorporated into the Service shall not contain any Customer Data.
- Customer Responsibilities and Restrictions.
- You agree that:
- You and Your Users will comply with BrainStorm’s Privacy Policy, located at https://info.brainstorminc.com/legal#privacy-policy, and its Content Submission Policy, which can be accessed at https://info.brainstorminc.com/legal#content-submission, as well as all applicable laws and regulations. You will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by Your Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- You will not attempt or permit others to attempt to gain unauthorized access to or use of the Service and will notify BrainStorm promptly of any known or suspected unauthorized access or use. You will notify BrainStorm immediately of any known or suspected unauthorized use of Your Users’ identifications and passwords or Your account by contacting support@quickhelp.com.
- You will be responsible for Your and Your Users’ use of the Service and any Customer Data, including, without limitation, any use of the Service and/or Customer Data that is in violation of applicable laws, regulations, Your policies, and/or BrainStorm’s Privacy Policy.
- You will not make access to or use of the Service and/or Customer Data a condition of any User’s employment if such a requirement would violate any privacy or security law or regulation. If User consents are required for You to provide to Us, or for Us to access or use, any Customer Data, You will be solely responsible for obtaining and documenting such consents and ensuring that such consents are freely and validly provided by each User. You will make such records of consents available to BrainStorm upon request.
- You will not (a) make the Service available to anyone other than Your Users, (b) sell, resell, rent or lease the Service, (c) interfere with or disrupt the integrity or performance of the Service or any of its content, or (d) attempt to gain unauthorized access to the Service’s underlying systems or networks.
- You may not access and use the Service if You are a direct competitor or are affiliated with a direct competitor of BrainStorm.
- You will not use the Service if You are legally prohibited from receiving or using the Service under the laws of the country in which You are a resident or from which You access or use the Service. The Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so You may not use the Service or upload Customer Data to the Service where Your use would be subject to such laws.
- YOU AGREE NOT TO USE THE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. YOU FURTHER AGREE THAT YOU WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO US. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
- You will only access or use the Service as expressly permitted by this Agreement.
- You will not copy, rent, lease, sell, distribute, or create derivative works based on the Service or BrainStorm Content, in whole or in part, by any means and for any reason whatsoever, except as expressly authorized in writing by BrainStorm.
- The Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- You agree that:
- Confidentiality. Each Party (as a Receiver), agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the Service, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 3(c) and BrainStorm’s Content Submission Policy, located at https://info.brainstorminc.com/legal#content-submission and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Sections 3(c) and BrainStorm’s Content Submission Policy, located at https://info.brainstorminc.com/legal#content-submission.
- Indemnification for Unauthorized Use. You agree to defend, indemnify, and hold BrainStorm harmless from and against any and all claims arising out of Your unauthorized use of the Service or other breach of this Agreement.
- Remedy for Infringement. Should Your right to use the Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for You the right to continue to access and use the Service; (ii) modify the Service to render it non-infringing but substantially functionally equivalent to the Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to You any amounts prepaid by You for the Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the Service will be provided materially in accordance with BrainStorm’s published documentation for the Service, as found on BrainStorm’s websites, www.brainstorminc.com, support.quickhelp.com, and www.quickhelp.com. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Service has been modified or altered by anyone other than BrainStorm, or if the Service has been abused or misapplied. If You promptly report a reproducible defect under this warranty, BrainStorm shall, in its sole discretion, either use its commercially reasonable efforts to resolve the nonconformity or terminate this Agreement and refund Your prepaid Fees for the unused portion of the Subscription Term.
- Customer Warranties. When You share Customer Data with BrainStorm or upload Customer Data to the Service, You represent and warrant that You are the creator and owner of, or that You have the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute, Customer Data as necessary for BrainStorm to provide You with access to the Service and to otherwise perform its obligations under this Agreement.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, QUICKHELP IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT QUICKHELP WILL SATISFY YOUR REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT YOUR ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR QUICKHELP DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT YOUR OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. YOU ACKNOWLEDGE THAT THE AMOUNT OF FEES PAYABLE BY YOU TO BRAINSTORM HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY PRODUCTS. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- Service Data
- Publicity. You agree that BrainStorm may disclose Your company’s name, whether in written or oral form, as a user of the Service in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party hereto who is required to engage the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the BrainStorm Privacy Policy, and the BrainStorm Acceptable Use Policy together constitute the entire agreement between the Parties for the provision of and access to the Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. We object to and reject any additional or different terms proposed by You, including those contained in Your purchase order, acceptance or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Service (but, Your Fees and charges won’t change during the Subscription Term except as explained in the Fees section above). If We update or change these terms and conditions, the updated terms and conditions will be posted at https://info.brainstorminc.com/legal#terms and We will let You know via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If You do not agree with a modification to this Agreement, You must notify Us in writing within thirty (30) days after receiving notice of the modification. If You give Us this notice, Your subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Your current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. You may not assign, sublicense, or transfer this Agreement, Your access to the Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing You written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form, You agree that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other event outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth in the Order Form, or unless otherwise indicated in writing, and will be deemed delivered as of the date of actual receipt.
- Injunctive Relief. You hereby expressly agree that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. You will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Your compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to You.
- Service Supplied to the Government. The Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. You will not export or re-export or allow the export or re-export of the Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective August 21st 2023 to August 21st 2023
DownloadTable of Contents
QUICKHELP™ TERMS & CONDITIONS
- Definitions.
- “Agreement” means this Subscription Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which You agree to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if You subscribe to the Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- “BrainStorm Content” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to You via the Service or otherwise.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. Our Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to You in connection with the Service, or (b) any materials or content provided to You as part of the implementation services or any other services provided by Us.
- “Customer Data” means all data, text, information, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted or displayed on or via the Service. Customer Data will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “Fees” means the amount You agree to pay for the Service and any other services we may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as the invoice or order form, as applicable, that includes some or all of the following information: a listing of the software applications and BrainStorm Content to be provided to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Service, and any maintenance and support being purchased (if applicable).
- “Service” means the online, cloud-based software application(s) and BrainStorm Content that are identified in the Order Form as being included in Customer’s purchase and that are provided by BrainStorm to Customer via the website https://www.quickhelp.com.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Your subscription (or access) to the Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which You agree to pay (or prepay) the Fees under an Order Form.
- “Users” means individuals who are authorized by Customer to access and use the Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors and agents of Customer.
- General Commercial Terms
- The Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Your payment of the applicable Fees, BrainStorm will provide You with access to the Service via the Internet during the Subscription Term. You understand and agree that Your purchase of a subscription to the Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Maximum Authorized Users. The Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. You may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase. This review and increase process will continue for each year of Your Subscription Term
- Fees and Payment.
- Subscription Fees. The Fees are set forth in the Order Form and will remain fixed during Your Subscription Term unless (a) You exceed Your maximum Users (see Section 2(a)(b)), or (b) You and BrainStorm mutually agree in writing to modify or amend the Order Form. All payment obligations hereunder are non-cancelable, and Fees paid are non-refundable, unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. The pricing for any Renewal Term (as defined below) may be set forth in Your Order Form. If Your Order Form does not include any pricing for a Renewal Term, then BrainStorm’s standard pricing available at the date of renewal will apply. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If You are paying by credit card, You authorize Us to charge Your credit card or bank account for all Fees payable during the Subscription Term. You further authorize Us to use a third party to process payments, and consent to the disclosure of Your payment information to such third party.
- Invoices. BrainStorm will invoice You in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then Your Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Service. BrainStorm will provide You with notice of non-payment of any amount due. If Your Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Your access to the Service (or any portion thereof) until such amounts are paid in full.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 2(b)(e) (Late Fees), or its right to suspend Your access to the Service under Section 2(b)(f) (Suspension of the Service), if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
- Taxes. You agree to pay all applicable taxes levied by any tax authority on the Service or on Your use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Additional BrainStorm Obligations.
- Maintenance and Support. In addition to the ongoing customer service support that BrainStorm will provide via a Client Success Manager, BrainStorm will provide product support during normal business hours of 8:00 AM - 6:00 PM MST, Monday through Friday, excluding holidays. Support is limited to the points of contact agreed to by the Parties (such as Your designated QuickHelp™ admins) and is generally not available directly to Your Users. You may contact BrainStorm by calling the support helpdesk at 801-229-1337 or sending an email to qhsupport@brainstorminc.com. Except as provided in this Section 2(c), BrainStorm will not have any other maintenance or support obligations to You.
- Updates to the Service. BrainStorm will support, maintain, upgrade, and update the Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement.
- Term and Termination.
- Term and Renewal. Your initial Subscription Term will be specified in Your Order Form (the “Initial Term”). Immediately following the Initial Term, Your subscription to the Service will automatically renew for an additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. You may notify BrainStorm of Your intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. Unless renewed as provided in Section 2(d)(a) above, the Subscription Term cannot be cancelled early and will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if You decide to stop using the Service during Your Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if We determine that You are acting, or have acted, in a way that has or may negatively reflect on or affect Us, Our prospects, or Our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If You terminate this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, You will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve You of Your obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination.
- Survival. Sections 1, 2(d)(d), 3, 4, 5 and 6 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- The Service.
- General Legal Terms
- Service Data
- Customer Data. As between the Parties, You own and retain all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Service to You and only as permitted by applicable law, this Agreement, and Our Privacy Policy, available at info.brainstorminc.com/legal/#privacy-policy. By importing or processing Customer Data in the Service, You grant BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Service. BrainStorm will not use, display, disclose or transfer Customer Data in any manner that specifically identifies Customer or its Users without Your prior written consent, except as otherwise set forth in Section 4 herein or in our Privacy Policy.
- De-Identified Data. BrainStorm monitors its Customers’ use of the Service and uses the information gathered for internal purposes in an aggregated and anonymous manner to improve the Service and BrainStorm Content. Notwithstanding any provision of this Agreement to the contrary, You hereby grant to BrainStorm an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, anonymize, and display, both during and after the Subscription Term, any usage statistics, usage data, or metadata We derive from Your or Your Users’ use of the Service, including any reports You share with Us from Your use of Microsoft Graph API, in order (i) to improve the Service, (ii) to produce and share aggregated insights from the usage statistics or usage data, or (iii) compare usage and adoption rates of Yours and others organizations; provided that BrainStorm will only use such usage statistics and usage data in an anonymized, de-identified or aggregated form (“De-Identified Data”), but only so long as the De-Identified Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws). To be clear, Customer Data does not include De-Identified Data. In no event will BrainStorm disclose or provide Customer Data or Your identity to third parties, except as provided in this Agreement or BrainStorm’s Privacy Policy.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Your behalf, in the provision of the Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://info.brainstorminc.com/legal#website-data, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by Us under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. You acknowledge in all cases that BrainStorm acts as the data processor of Customer Data and You are the data controller of Customer Data under all applicable data protection laws or regulations. You agree that, to the extent required, you have a lawful basis for the processing of the Personal Data. You also agree to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Service, and You are not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and Our licensors (if any), and We retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance are You permitted to remove any copyright notice from the Service. “QuickHelp” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Service.
- Suggestions. We encourage all Customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Service or its operation (“Suggestions”). You agree that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Service, without payment or attribution to You. Any Suggestions incorporated into the Service shall not contain any Customer Data.
- Customer Responsibilities and Restrictions.
- You agree that:
- You and Your Users will comply with BrainStorm’s Privacy Policy, located at https://info.brainstorminc.com/legal#privacy-policy, and its Content Submission Policy, which can be accessed at https://info.brainstorminc.com/legal#content-submission, as well as all applicable laws and regulations. You will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by Your Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- You will not attempt or permit others to attempt to gain unauthorized access to or use of the Service and will notify BrainStorm promptly of any known or suspected unauthorized access or use. You will notify BrainStorm immediately of any known or suspected unauthorized use of Your Users’ identifications and passwords or Your account by contacting support@quickhelp.com.
- You will be responsible for Your and Your Users’ use of the Service and any Customer Data, including, without limitation, any use of the Service and/or Customer Data that is in violation of applicable laws, regulations, Your policies, and/or BrainStorm’s Privacy Policy.
- You will not make access to or use of the Service and/or Customer Data a condition of any User’s employment if such a requirement would violate any privacy or security law or regulation. If User consents are required for You to provide to Us, or for Us to access or use, any Customer Data, You will be solely responsible for obtaining and documenting such consents and ensuring that such consents are freely and validly provided by each User. You will make such records of consents available to BrainStorm upon request.
- You will not (a) make the Service available to anyone other than Your Users, (b) sell, resell, rent or lease the Service, (c) interfere with or disrupt the integrity or performance of the Service or any of its content, or (d) attempt to gain unauthorized access to the Service’s underlying systems or networks.
- You may not access and use the Service if You are a direct competitor or are affiliated with a direct competitor of BrainStorm.
- You will not use the Service if You are legally prohibited from receiving or using the Service under the laws of the country in which You are a resident or from which You access or use the Service. The Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so You may not use the Service or upload Customer Data to the Service where Your use would be subject to such laws.
- YOU AGREE NOT TO USE THE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. YOU FURTHER AGREE THAT YOU WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO US. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
- You will only access or use the Service as expressly permitted by this Agreement.
- You will not copy, rent, lease, sell, distribute, or create derivative works based on the Service or BrainStorm Content, in whole or in part, by any means and for any reason whatsoever, except as expressly authorized in writing by BrainStorm.
- The Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- You agree that:
- Confidentiality. Each Party (as a Receiver), agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the Service, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 3(c) and BrainStorm’s Content Submission Policy, located at https://info.brainstorminc.com/legal#content-submission and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Sections 3(c) and BrainStorm’s Content Submission Policy, located at https://info.brainstorminc.com/legal#content-submission.
- Indemnification for Unauthorized Use. You agree to defend, indemnify, and hold BrainStorm harmless from and against any and all claims arising out of Your unauthorized use of the Service or other breach of this Agreement.
- Remedy for Infringement. Should Your right to use the Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for You the right to continue to access and use the Service; (ii) modify the Service to render it non-infringing but substantially functionally equivalent to the Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to You any amounts prepaid by You for the Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the Service will be provided materially in accordance with BrainStorm’s published documentation for the Service, as found on BrainStorm’s websites, www.brainstorminc.com, support.quickhelp.com, and www.quickhelp.com. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Service has been modified or altered by anyone other than BrainStorm, or if the Service has been abused or misapplied. If You promptly report a reproducible defect under this warranty, BrainStorm shall, in its sole discretion, either use its commercially reasonable efforts to resolve the nonconformity or terminate this Agreement and refund Your prepaid Fees for the unused portion of the Subscription Term.
- Customer Warranties. When You share Customer Data with BrainStorm or upload Customer Data to the Service, You represent and warrant that You are the creator and owner of, or that You have the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute, Customer Data as necessary for BrainStorm to provide You with access to the Service and to otherwise perform its obligations under this Agreement.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, QUICKHELP IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT QUICKHELP WILL SATISFY YOUR REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT YOUR ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR QUICKHELP DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT YOUR OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. YOU ACKNOWLEDGE THAT THE AMOUNT OF FEES PAYABLE BY YOU TO BRAINSTORM HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY PRODUCTS. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- Service Data
- Publicity. You agree that BrainStorm may disclose Your company’s name, whether in written or oral form, as a user of the Service in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party hereto who is required to engage the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the BrainStorm Privacy Policy, and the BrainStorm Acceptable Use Policy together constitute the entire agreement between the Parties for the provision of and access to the Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. We object to and reject any additional or different terms proposed by You, including those contained in Your purchase order, acceptance or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Service (but, Your Fees and charges won’t change during the Subscription Term except as explained in the Fees section above). If We update or change these terms and conditions, the updated terms and conditions will be posted at https://info.brainstorminc.com/legal#terms and We will let You know via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If You do not agree with a modification to this Agreement, You must notify Us in writing within thirty (30) days after receiving notice of the modification. If You give Us this notice, Your subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Your current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. You may not assign, sublicense, or transfer this Agreement, Your access to the Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing You written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form, You agree that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other event outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth in the Order Form, or unless otherwise indicated in writing, and will be deemed delivered as of the date of actual receipt.
- Injunctive Relief. You hereby expressly agree that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. You will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Your compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to You.
- Service Supplied to the Government. The Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. You will not export or re-export or allow the export or re-export of the Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
BrainStorm Data Protection Agreement with SCCs
Effective August 30th 2023
DownloadTable of Contents
BRAINSTORM DATA PROTECTION ADDENDUM
- Definitions.
- The following definitions and rules of interpretation apply in this DPA.
- “Business Purpose” means the services described in the Master Agreement or any other purpose specifically identified in Appendix A.
- “Data Subject” means an individual who is the subject of Personal Information.
- “Personal Information” means any information the Provider processes for the Customer that (a) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in the Provider’s possession or control or that the Provider is likely to have access to, or (b) the relevant Privacy and Data Protection Requirements otherwise define as protected personal information.
- “Processing, processes, or process” means any activity that involves the use of Personal Information or that the relevant Privacy and Data Protection Requirements may otherwise include in the definition of processing, processes, or process. It includes obtaining, recording, or holding the data, or carrying out any operation or set of operations on the data including, but not limited to, organizing, amending, retrieving, using, disclosing, erasing, or destroying it. Processing also includes transferring Personal Information to third parties
- “Privacy and Data Protection Requirements” means all applicable federal, state, and international laws and regulations relating to the processing, protection, or privacy of Personal Information, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction.
- “Security Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Information transmitted, stored or otherwise processed by Provider; or a security breach as defined by applicable Privacy and Data Protection Requirements.
- The following definitions and rules of interpretation apply in this DPA.
- Interpretation.
- This DPA is subject to the terms of the Master Agreement and is incorporated into the Master Agreement. Interpretations and defined terms set forth in the Master Agreement apply to the interpretation of this DPA.
- The Appendices form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Appendices
- A reference to writing or written includes email but not messages sent via fax.
- In the case of conflict or ambiguity between:
- any provision contained in the body of this DPA and any provision contained in the Appendices, the provision in the body of this DPA will prevail;
- the terms of any accompanying invoice or other documents annexed to this DPA and any provision contained in the Appendices, the provision contained in the Appendices will prevail;
- any of the provisions of this DPA and the provisions of the Master Agreement, the provisions of this DPA will prevail; and
- any of the provisions of this agreement and any executed Standard Contractual Clauses, the provisions of the executed Standard Contractual Clauses will prevail.
- Personal Information Types and Processing Purposes.
- The Customer retains control of the Personal Information and remains responsible for its compliance obligations under the applicable Privacy and Data Protection Requirements, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to the Provider.
- Provider’s Obligations.
- Appendix A describes the general Personal Information categories and Data Subject types the Provider may process to fulfill the Business Purposes of the Master Agreement.
- The Provider will only process the Personal Information to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Customer’s instructions. The Provider will not process the Personal Information for any other purpose or in a way that does not comply with this DPA or the Privacy and Data Protection Requirements. The Provider will promptly notify the Customer if, in its opinion, the Customer’s instruction would not comply with the Privacy and Data Protection Requirements.
- The Provider shall promptly comply with any Customer request or instruction requiring the Provider to amend, transfer, or delete the Personal Information, or to stop, mitigate, or remedy any unauthorized processing.
- The Provider will maintain the confidentiality of all Personal Information and will not disclose Personal Information to third parties unless the Customer or this DPA specifically authorizes the disclosure, or as required by law. If a law requires the Provider to process or disclose Personal Information, the Provider shall first inform the Customer of the legal requirement and give the Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice.
- The Provider will reasonably assist the Customer with meeting the Customer’s compliance obligations under the Privacy and Data Protection Requirements, taking into account the nature of the Provider’s processing and the information available to the Provider.
- The Provider will promptly notify the Customer of any changes to Privacy and Data Protection Requirements that may adversely affect the Provider’s performance of the Master Agreement.
- The Customer acknowledges that the Provider is under no duty to investigate the completeness, accuracy, or sufficiency of any specific Customer instructions from Authorized Persons or the Personal Information other than as required under the Privacy and Data Protection Requirements.
- The Provider will only collect Personal Information for the Customer using the notice set forth at info.brainstorminc.com/legal/#privacy-policy.
- Provider’s Employees.
- The Provider will limit Personal Information access to:
- The Provider will ensure that all employees:
- are informed of the Personal Information’s confidential nature and use restrictions;
- have undertaken training on the Privacy and Data Protection Requirements relating to handling Personal Information and how it applies to their particular duties; and
- are aware both of the Provider’s duties and their personal duties and obligations under the Privacy and Data Protection Requirements and this DPA.
- The Provider will take reasonable steps to ensure the reliability, integrity, and trustworthiness of all of the Provider’s employees with access to the Personal Information.
- Security.
- The Provider will maintain appropriate technical and organizational measures designed to safeguard Personal Information against unauthorized or unlawful processing, access, copying, modification, storage, reproduction, display, or distribution, and against accidental loss, destruction, or damage. These shall include any security measures set out in Appendix B. The Provider will periodically review these measures at least annually to ensure they remain current and complete.
- The Provider will immediately notify the Customer if it becomes aware of any advance in technology and methods of working, which indicate that the parties should adjust their security measures.
- The Provider will take reasonable precautions to preserve the integrity of any Personal Information it processes and to prevent any corruption or loss of the Personal Information, including but not limited to establishing effective back-up and data restoration procedures.
- Security Breaches.
- The Provider will promptly notify the Customer of any Security Breach.
- Immediately following a Security Breach, the parties will co-ordinate with each other to investigate the matter. The Provider will reasonably co-operate with the Customer in the Customer’s handling of the matter, including: making available all relevant records, logs, files, data reporting, and other materials required to comply with all Privacy and Data Protection Requirements or as otherwise reasonably required by the Customer.
- The Provider will not inform any third party of any Security Breach without first obtaining the Customer’s prior written consent, except when law or regulation requires it.
- The Provider agrees that the Customer has the sole right to determine:
- whether to provide notice of the Security Breach to any Data Subjects, regulators, law enforcement agencies, or others, as required by law or regulation or in the Customer’s discretion, including the contents and delivery method of the notice; and
- whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
- The Provider will cover all reasonable expenses associated with the performance of the obligations under clause Clause 2 and 6.c, unless the matter arose from the Customer’s specific instructions, negligence, willful default, or breach of this DPA, in which case the Customer will cover all reasonable expenses.
- The Provider will also reimburse the Customer for actual reasonable expenses the Customer incurs when responding to and mitigating damages, to the extent that the Provider caused a Security Breach, including all costs of notice and any remedy as set out in clause 4.
- Cross-Border Transfers of Personal Information.
- If the Privacy and Data Protection Requirements restrict cross-border Personal Information transfers, the Customer will only transfer that Personal Information to the Provider under the following conditions:
- the Provider, either through its location or participation in a valid cross-border transfer mechanism under the Privacy and Data Protection Requirements, as identified in Appendix A, may legally receive that Personal Information; however the Provider will immediately inform the Customer of any change to that status;
- the Customer obtained valid Data Subject consent to the transfer under the Privacy and Data Protection Requirements; or
- the transfer otherwise complies with the Privacy and Data Protection Requirements for the reasons set forth in Appendix A.
- The Provider will not transfer any Personal Information to another country unless the transfer complies with the Privacy and Data Protection Requirements. In Appendix A, the Provider shall identify the legal basis supporting any transfers it makes and will promptly inform the Customer of any change to that status.
- If the Privacy and Data Protection Requirements restrict cross-border Personal Information transfers, the Customer will only transfer that Personal Information to the Provider under the following conditions:
- Subcontractors.
- The Provider may only authorize a third party (subcontractor) other than those set forth in Appendix A to process the Personal Information if:
- the Customer is given an opportunity to object within 14 days after the Provider supplies the Customer with details regarding the subcontractor’s proposed role and contact information;
- the Provider enters into a written contract with the subcontractor that contains terms substantially the same as those set out in this DPA and, upon the Customer’s written request, provides the Customer with copies of such contracts (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum);
- the Provider maintains control over all Personal Information it entrusts to the subcontractor; and
- the subcontractor shall return or delete the Personal Information after the end of the provision of Subscription Service relating to Provider upon such notice from Customer.
- The Provider shall list all subcontractors that it anticipates using to carry out the Business Purposes in Appendix A and include each subcontractor’s name and location and contact information for the person responsible for privacy and data protection compliance. The Customer’s agreement to this DPA shall authorize the Provider to use the subcontractors as described in Appendix A.
- If a subcontractor fails to fulfill its obligations under such written agreement, the Provider remains responsible to the Customer for the subcontractor’s performance of its obligations.
- Upon the Customer’s written request, the Provider will audit a subcontractor’s compliance with its obligations regarding the Customer’s Personal Information and provide the Customer with a summary of the audit results.
- The Provider may only authorize a third party (subcontractor) other than those set forth in Appendix A to process the Personal Information if:
- Complaints, Data Subject Requests, and Third-Party Rights.
- The Provider shall notify the Customer promptly if it receives any complaint, notice, or communication that directly or indirectly relates to the Personal Information processing or to either party’s compliance with the Privacy and Data Protection Requirements.
- The Provider will notify the Customer within 5 working days if it receives a request from a Data Subject regarding their Personal Information unless the Provider is able to fully handle and respond to such request.
- The Provider will give the Customer its full co-operation and assistance in responding to any complaint, notice, communication, or Data Subject request.
- The Provider shall not disclose the Personal Information to any Data Subject or to a third party unless the disclosure is either at the Customer’s request or instruction, permitted by this DPA, or is otherwise required by law.
- Term and Termination.
- This DPA will remain in full force and effect so long as:
- Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Master Agreement in order to protect Personal Information will remain in full force and effect.
- If a change in any Privacy and Data Protection Requirement prevents either party from fulfilling all or part of its Master Agreement obligations, the parties will suspend the processing of Personal Information until that processing complies with the new requirements. If the parties are unable to bring the Personal Information processing into compliance with the Privacy and Data Protection Requirement within a reasonable time, they may terminate the Master Agreement upon written notice to the other party.
- Data Return and Destruction.
- At the Customer’s request, the Provider will give the Customer a copy of or access to all or part of the Customer’s Personal Information in its possession or control in the format and on the media reasonably specified by the Customer.
- On written notice from the Customer, the Provider will securely destroy or return and not retain all or any Personal Information related to this agreement in its possession or control, except for one copy that it may retain and use for audit purposes only.
- If any law, regulation, or government or regulatory body requires the Provider to retain any documents or materials that the Provider would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends. The Provider may only use this retained Personal Information for the required retention reason or audit purposes.
- If Customer requests, the Provider will certify in writing that it has destroyed the Personal Information within 30 days after receiving the Customer’s request.
- Records.
- The Provider will keep detailed, accurate, and up-to-date records regarding any processing of Personal Information it carries out for the Customer, including but not limited to, the access, control, and security of the Personal Information, approved subcontractors and affiliates, the processing purposes, and any other records required by the applicable Privacy and Data Protection Requirements (the “Records”).
- The Provider will ensure that the Records are sufficient to enable the Customer to verify the Provider’s compliance with its obligations under this DPA.
- The Customer and the Provider shall review the information listed in the Appendices to this DPA annually to confirm its current accuracy and update it if required to reflect current practices.
- Audit.
- At least annually, the Provider will assess its Personal Information processing practices and the information technology and information security controls for all facilities and systems used in complying with its obligations under this DPA.
- Upon the Customer’s written request, the Provider will make the relevant reports available to the Customer for review. The Customer will treat such audit reports as the Provider’s confidential information under this Agreement.
- The Provider will promptly address any issues, concerns, or exceptions noted in the audit reports with the development and implementation of a corrective action plan by the Provider’s management.
- Warranties.
- The Provider warrants and represents that:
- its employees, subcontractors, agents, and any other person or persons accessing Personal Information on its behalf are reliable and trustworthy and have received the required training on the Privacy and Data Protection Requirements relating to the Personal Information; and
- it and anyone operating on its behalf will process the Personal Information in compliance with both the terms of this DPA and all applicable Privacy and Data Protection Requirements and other laws, enactments, regulations, orders, standards, and other similar instruments; and
- it has no reason to believe that any Privacy and Data Protection Requirements prevent it from providing any of the Master Agreement’s contracted services; and
- considering the current technology environment and implementation costs, it will take appropriate technical and organizational measures to prevent the unauthorized or unlawful processing of Personal Information and the accidental loss or destruction of, or damage to, Personal Information, and ensure a level of security appropriate to:
- the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction, or damage;
- the nature of the Personal Information protected; and
- comply with all applicable Privacy and Data Protection Requirements and its information and security policies, including the security measures required in clause 5.
- The Customer warrants and represents that the Provider’s expected use of the Personal Information for the Business Purpose and as specifically instructed by the Customer will comply with all Privacy and Data Protection Requirements.
- The Provider warrants and represents that:
- Indemnification.
- The Provider agrees to indemnify the Customer against all costs, claims, damages, or expenses incurred by the Customer or for which the Customer may become liable due to any failure by the Provider or its employees, subcontractors, or agents to comply with any of its obligations under this DPA or applicable Privacy and Data Protection Requirements.
- The limitations on liability set forth in the Master Agreement shall apply to this DPA’s indemnity or reimbursement obligations.
- Notice
- Any notice or other communication given to a party under or in connection with this DPA shall be in writing and delivered to:
- Clause 16.a does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Appendix A
Personal Information Processing Purposes and Details
Appendix B
Security Measures
APPENDIX C
STANDARD CONTRACTUAL CLAUSES
Controller to Processor
- [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Name | Location | Contact (if available) | Description of Processing |
Microsoft Azure | USA | Hosting services provider | |
SendGrid | USA | In-application email messaging | |
Aha! | USA | Customer feedback portal | |
HubSpot | USA | Email campaign management | |
Snowflake | USA | Data warehouse | |
Ironclad | USA | Clickwrap management | |
Freshdesk | USA | Support desk solution | |
Productboard | USA | Customer feedback portal and product roadmap | |
Datadog | USA | Platform monitoring and analytics |
END OF ADDENDUM
Effective May 25th 2023 to August 30th 2023
DownloadSummary of changes
Table of Contents
BrainStorm, Inc. Data Protection Addendum
- Definitions.
- The following definitions and rules of interpretation apply in this DPA.
- “Business Purpose” means the services described in the Master Agreement or any other purpose specifically identified in Appendix A.
- “Data Subject” means an individual who is the subject of Personal Information.
- “Personal Information” means any information the Provider processes for the Customer that (a) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in the Provider’s possession or control or that the Provider is likely to have access to, or (b) the relevant Privacy and Data Protection Requirements otherwise define as protected personal information.
- “Processing, processes, or process” means any activity that involves the use of Personal Information or that the relevant Privacy and Data Protection Requirements may otherwise include in the definition of processing, processes, or process. It includes obtaining, recording, or holding the data, or carrying out any operation or set of operations on the data including, but not limited to, organizing, amending, retrieving, using, disclosing, erasing, or destroying it. Processing also includes transferring Personal Information to third parties
- “Privacy and Data Protection Requirements” means all applicable federal, state, and international laws and regulations relating to the processing, protection, or privacy of Personal Information, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction.
- “Security Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Information transmitted, stored or otherwise processed by Provider; or a security breach as defined by applicable Privacy and Data Protection Requirements.
- The following definitions and rules of interpretation apply in this DPA.
- Interpretation.
- This DPA is subject to the terms of the Master Agreement and is incorporated into the Master Agreement. Interpretations and defined terms set forth in the Master Agreement apply to the interpretation of this DPA.
- The Appendices form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Appendices
- A reference to writing or written includes email but not messages sent via fax.
- In the case of conflict or ambiguity between:
- any provision contained in the body of this DPA and any provision contained in the Appendices, the provision in the body of this DPA will prevail;
- the terms of any accompanying invoice or other documents annexed to this DPA and any provision contained in the Appendices, the provision contained in the Appendices will prevail;
- any of the provisions of this DPA and the provisions of the Master Agreement, the provisions of this DPA will prevail; and
- any of the provisions of this agreement and any executed Standard Contractual Clauses, the provisions of the executed Standard Contractual Clauses will prevail.
- Personal Information Types and Processing Purposes.
- The Customer retains control of the Personal Information and remains responsible for its compliance obligations under the applicable Privacy and Data Protection Requirements, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to the Provider.
- Provider’s Obligations.
- Appendix A describes the general Personal Information categories and Data Subject types the Provider may process to fulfill the Business Purposes of the Master Agreement.
- The Provider will only process the Personal Information to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Customer’s instructions. The Provider will not process the Personal Information for any other purpose or in a way that does not comply with this DPA or the Privacy and Data Protection Requirements. The Provider will promptly notify the Customer if, in its opinion, the Customer’s instruction would not comply with the Privacy and Data Protection Requirements.
- The Provider shall promptly comply with any Customer request or instruction requiring the Provider to amend, transfer, or delete the Personal Information, or to stop, mitigate, or remedy any unauthorized processing.
- The Provider will maintain the confidentiality of all Personal Information and will not disclose Personal Information to third parties unless the Customer or this DPA specifically authorizes the disclosure, or as required by law. If a law requires the Provider to process or disclose Personal Information, the Provider shall first inform the Customer of the legal requirement and give the Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice.
- The Provider will reasonably assist the Customer with meeting the Customer’s compliance obligations under the Privacy and Data Protection Requirements, taking into account the nature of the Provider’s processing and the information available to the Provider.
- The Provider will promptly notify the Customer of any changes to Privacy and Data Protection Requirements that may adversely affect the Provider’s performance of the Master Agreement.
- The Customer acknowledges that the Provider is under no duty to investigate the completeness, accuracy, or sufficiency of any specific Customer instructions from Authorized Persons or the Personal Information other than as required under the Privacy and Data Protection Requirements.
- The Provider will only collect Personal Information for the Customer using the notice set forth at info.brainstorminc.com/legal/#privacy-policy.
- Provider’s Employees.
- The Provider will limit Personal Information access to:
- The Provider will ensure that all employees:
- are informed of the Personal Information’s confidential nature and use restrictions;
- have undertaken training on the Privacy and Data Protection Requirements relating to handling Personal Information and how it applies to their particular duties; and
- are aware both of the Provider’s duties and their personal duties and obligations under the Privacy and Data Protection Requirements and this DPA.
- The Provider will take reasonable steps to ensure the reliability, integrity, and trustworthiness of all of the Provider’s employees with access to the Personal Information.
- Security.
- The Provider will maintain appropriate technical and organizational measures designed to safeguard Personal Information against unauthorized or unlawful processing, access, copying, modification, storage, reproduction, display, or distribution, and against accidental loss, destruction, or damage. These shall include any security measures set out in Appendix B. The Provider will periodically review these measures at least annually to ensure they remain current and complete.
- The Provider will immediately notify the Customer if it becomes aware of any advance in technology and methods of working, which indicate that the parties should adjust their security measures.
- The Provider will take reasonable precautions to preserve the integrity of any Personal Information it processes and to prevent any corruption or loss of the Personal Information, including but not limited to establishing effective back-up and data restoration procedures.
- Security Breaches.
- The Provider will promptly notify the Customer of any Security Breach.
- Immediately following a Security Breach, the parties will co-ordinate with each other to investigate the matter. The Provider will reasonably co-operate with the Customer in the Customer’s handling of the matter, including: making available all relevant records, logs, files, data reporting, and other materials required to comply with all Privacy and Data Protection Requirements or as otherwise reasonably required by the Customer.
- The Provider will not inform any third party of any Security Breach without first obtaining the Customer’s prior written consent, except when law or regulation requires it.
- The Provider agrees that the Customer has the sole right to determine:
- whether to provide notice of the Security Breach to any Data Subjects, regulators, law enforcement agencies, or others, as required by law or regulation or in the Customer’s discretion, including the contents and delivery method of the notice; and
- whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
- The Provider will cover all reasonable expenses associated with the performance of the obligations under clause Clause 2 and 6.c, unless the matter arose from the Customer’s specific instructions, negligence, willful default, or breach of this DPA, in which case the Customer will cover all reasonable expenses.
- The Provider will also reimburse the Customer for actual reasonable expenses the Customer incurs when responding to and mitigating damages, to the extent that the Provider caused a Security Breach, including all costs of notice and any remedy as set out in clause 4.
- Cross-Border Transfers of Personal Information.
- If the Privacy and Data Protection Requirements restrict cross-border Personal Information transfers, the Customer will only transfer that Personal Information to the Provider under the following conditions:
- the Provider, either through its location or participation in a valid cross-border transfer mechanism under the Privacy and Data Protection Requirements, as identified in Appendix A, may legally receive that Personal Information; however the Provider will immediately inform the Customer of any change to that status;
- the Customer obtained valid Data Subject consent to the transfer under the Privacy and Data Protection Requirements; or
- the transfer otherwise complies with the Privacy and Data Protection Requirements for the reasons set forth in Appendix A.
- The Provider will not transfer any Personal Information to another country unless the transfer complies with the Privacy and Data Protection Requirements. In Appendix A, the Provider shall identify the legal basis supporting any transfers it makes and will promptly inform the Customer of any change to that status.
- If the Privacy and Data Protection Requirements restrict cross-border Personal Information transfers, the Customer will only transfer that Personal Information to the Provider under the following conditions:
- Subcontractors.
- The Provider may only authorize a third party (subcontractor) other than those set forth in Appendix A to process the Personal Information if:
- the Customer is given an opportunity to object within 14 days after the Provider supplies the Customer with details regarding the subcontractor’s proposed role and contact information;
- the Provider enters into a written contract with the subcontractor that contains terms substantially the same as those set out in this DPA and, upon the Customer’s written request, provides the Customer with copies of such contracts (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum);
- the Provider maintains control over all Personal Information it entrusts to the subcontractor; and
- the subcontractor shall return or delete the Personal Information after the end of the provision of Subscription Service relating to Provider upon such notice from Customer.
- The Provider shall list all subcontractors that it anticipates using to carry out the Business Purposes in Appendix A and include each subcontractor’s name and location and contact information for the person responsible for privacy and data protection compliance. The Customer’s agreement to this DPA shall authorize the Provider to use the subcontractors as described in Appendix A.
- If a subcontractor fails to fulfill its obligations under such written agreement, the Provider remains responsible to the Customer for the subcontractor’s performance of its obligations.
- Upon the Customer’s written request, the Provider will audit a subcontractor’s compliance with its obligations regarding the Customer’s Personal Information and provide the Customer with a summary of the audit results.
- The Provider may only authorize a third party (subcontractor) other than those set forth in Appendix A to process the Personal Information if:
- Complaints, Data Subject Requests, and Third-Party Rights.
- The Provider shall notify the Customer promptly if it receives any complaint, notice, or communication that directly or indirectly relates to the Personal Information processing or to either party’s compliance with the Privacy and Data Protection Requirements.
- The Provider will notify the Customer within 5 working days if it receives a request from a Data Subject regarding their Personal Information unless the Provider is able to fully handle and respond to such request.
- The Provider will give the Customer its full co-operation and assistance in responding to any complaint, notice, communication, or Data Subject request.
- The Provider shall not disclose the Personal Information to any Data Subject or to a third party unless the disclosure is either at the Customer’s request or instruction, permitted by this DPA, or is otherwise required by law.
- Term and Termination.
- This DPA will remain in full force and effect so long as:
- Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Master Agreement in order to protect Personal Information will remain in full force and effect.
- If a change in any Privacy and Data Protection Requirement prevents either party from fulfilling all or part of its Master Agreement obligations, the parties will suspend the processing of Personal Information until that processing complies with the new requirements. If the parties are unable to bring the Personal Information processing into compliance with the Privacy and Data Protection Requirement within a reasonable time, they may terminate the Master Agreement upon written notice to the other party.
- Data Return and Destruction.
- At the Customer’s request, the Provider will give the Customer a copy of or access to all or part of the Customer’s Personal Information in its possession or control in the format and on the media reasonably specified by the Customer.
- On written notice from the Customer, the Provider will securely destroy or return and not retain all or any Personal Information related to this agreement in its possession or control, except for one copy that it may retain and use for audit purposes only.
- If any law, regulation, or government or regulatory body requires the Provider to retain any documents or materials that the Provider would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends. The Provider may only use this retained Personal Information for the required retention reason or audit purposes.
- If Customer requests, the Provider will certify in writing that it has destroyed the Personal Information within 30 days after receiving the Customer’s request.
- Records.
- The Provider will keep detailed, accurate, and up-to-date records regarding any processing of Personal Information it carries out for the Customer, including but not limited to, the access, control, and security of the Personal Information, approved subcontractors and affiliates, the processing purposes, and any other records required by the applicable Privacy and Data Protection Requirements (the “Records”).
- The Provider will ensure that the Records are sufficient to enable the Customer to verify the Provider’s compliance with its obligations under this DPA.
- The Customer and the Provider shall review the information listed in the Appendices to this DPA annually to confirm its current accuracy and update it if required to reflect current practices.
- Audit.
- At least annually, the Provider will assess its Personal Information processing practices and the information technology and information security controls for all facilities and systems used in complying with its obligations under this DPA.
- Upon the Customer’s written request, the Provider will make the relevant reports available to the Customer for review. The Customer will treat such audit reports as the Provider’s confidential information under this Agreement.
- The Provider will promptly address any issues, concerns, or exceptions noted in the audit reports with the development and implementation of a corrective action plan by the Provider’s management.
- Warranties.
- The Provider warrants and represents that:
- its employees, subcontractors, agents, and any other person or persons accessing Personal Information on its behalf are reliable and trustworthy and have received the required training on the Privacy and Data Protection Requirements relating to the Personal Information; and
- it and anyone operating on its behalf will process the Personal Information in compliance with both the terms of this DPA and all applicable Privacy and Data Protection Requirements and other laws, enactments, regulations, orders, standards, and other similar instruments; and
- it has no reason to believe that any Privacy and Data Protection Requirements prevent it from providing any of the Master Agreement’s contracted services; and
- considering the current technology environment and implementation costs, it will take appropriate technical and organizational measures to prevent the unauthorized or unlawful processing of Personal Information and the accidental loss or destruction of, or damage to, Personal Information, and ensure a level of security appropriate to:
- the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction, or damage;
- the nature of the Personal Information protected; and
- comply with all applicable Privacy and Data Protection Requirements and its information and security policies, including the security measures required in clause 5.
- The Customer warrants and represents that the Provider’s expected use of the Personal Information for the Business Purpose and as specifically instructed by the Customer will comply with all Privacy and Data Protection Requirements.
- The Provider warrants and represents that:
- Indemnification.
- The Provider agrees to indemnify the Customer against all costs, claims, damages, or expenses incurred by the Customer or for which the Customer may become liable due to any failure by the Provider or its employees, subcontractors, or agents to comply with any of its obligations under this DPA or applicable Privacy and Data Protection Requirements.
- The limitations on liability set forth in the Master Agreement shall apply to this DPA’s indemnity or reimbursement obligations.
- Notice
- Any notice or other communication given to a party under or in connection with this DPA shall be in writing and delivered to:
- Clause 16.a does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Appendix A
Personal Information Processing Purposes and Details
Appendix B
Security Measures
APPENDIX C
STANDARD CONTRACTUAL CLAUSES
Controller to Processor
- [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Name | Location | Contact (if available) | Description of Processing |
Microsoft Azure | USA | Hosting services provider | |
SendGrid | USA | In-application email messaging | |
Aha! | USA | Customer feedback portal | |
HubSpot | USA | Email campaign management | |
Snowflake | USA | Data warehouse | |
Ironclad | USA | Clickwrap management | |
Freshdesk | USA | Support desk solution | |
Productboard | USA | Customer feedback portal and product roadmap | |
Datadog | USA | Platform monitoring and analytics |
END OF ADDENDUM
Effective February 27th 2023 to May 25th 2023
DownloadTable of Contents
BrainStorm, Inc. Data Protection Addendum
- Definitions.
- The following definitions and rules of interpretation apply in this DPA.
- “Business Purpose” means the services described in the Master Agreement or any other purpose specifically identified in Appendix A.
- “Data Subject” means an individual who is the subject of Personal Information.
- “Personal Information” means any information the Provider processes for the Customer that (a) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in the Provider’s possession or control or that the Provider is likely to have access to, or (b) the relevant Privacy and Data Protection Requirements otherwise define as protected personal information.
- “Processing, processes, or process” means any activity that involves the use of Personal Information or that the relevant Privacy and Data Protection Requirements may otherwise include in the definition of processing, processes, or process. It includes obtaining, recording, or holding the data, or carrying out any operation or set of operations on the data including, but not limited to, organizing, amending, retrieving, using, disclosing, erasing, or destroying it. Processing also includes transferring Personal Information to third parties
- “Privacy and Data Protection Requirements” means all applicable federal, state, and international laws and regulations relating to the processing, protection, or privacy of Personal Information, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction.
- “Security Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Information transmitted, stored or otherwise processed by Provider; or a security breach as defined by applicable Privacy and Data Protection Requirements.
- The following definitions and rules of interpretation apply in this DPA.
- Interpretation.
- This DPA is subject to the terms of the Master Agreement and is incorporated into the Master Agreement. Interpretations and defined terms set forth in the Master Agreement apply to the interpretation of this DPA.
- The Appendices form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Appendices
- A reference to writing or written includes email but not messages sent via fax.
- In the case of conflict or ambiguity between:
- any provision contained in the body of this DPA and any provision contained in the Appendices, the provision in the body of this DPA will prevail;
- the terms of any accompanying invoice or other documents annexed to this DPA and any provision contained in the Appendices, the provision contained in the Appendices will prevail;
- any of the provisions of this DPA and the provisions of the Master Agreement, the provisions of this DPA will prevail; and
- any of the provisions of this agreement and any executed Standard Contractual Clauses, the provisions of the executed Standard Contractual Clauses will prevail.
- Personal Information Types and Processing Purposes.
- The Customer retains control of the Personal Information and remains responsible for its compliance obligations under the applicable Privacy and Data Protection Requirements, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to the Provider.
- Provider’s Obligations.
- Appendix A describes the general Personal Information categories and Data Subject types the Provider may process to fulfill the Business Purposes of the Master Agreement.
- The Provider will only process the Personal Information to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Customer’s instructions. The Provider will not process the Personal Information for any other purpose or in a way that does not comply with this DPA or the Privacy and Data Protection Requirements. The Provider will promptly notify the Customer if, in its opinion, the Customer’s instruction would not comply with the Privacy and Data Protection Requirements.
- The Provider shall promptly comply with any Customer request or instruction requiring the Provider to amend, transfer, or delete the Personal Information, or to stop, mitigate, or remedy any unauthorized processing.
- The Provider will maintain the confidentiality of all Personal Information and will not disclose Personal Information to third parties unless the Customer or this DPA specifically authorizes the disclosure, or as required by law. If a law requires the Provider to process or disclose Personal Information, the Provider shall first inform the Customer of the legal requirement and give the Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice.
- The Provider will reasonably assist the Customer with meeting the Customer’s compliance obligations under the Privacy and Data Protection Requirements, taking into account the nature of the Provider’s processing and the information available to the Provider.
- The Provider will promptly notify the Customer of any changes to Privacy and Data Protection Requirements that may adversely affect the Provider’s performance of the Master Agreement.
- The Customer acknowledges that the Provider is under no duty to investigate the completeness, accuracy, or sufficiency of any specific Customer instructions from Authorized Persons or the Personal Information other than as required under the Privacy and Data Protection Requirements.
- The Provider will only collect Personal Information for the Customer using the notice set forth at info.brainstorminc.com/legal/#privacy-policy.
- Provider’s Employees.
- The Provider will limit Personal Information access to:
- The Provider will ensure that all employees:
- are informed of the Personal Information’s confidential nature and use restrictions;
- have undertaken training on the Privacy and Data Protection Requirements relating to handling Personal Information and how it applies to their particular duties; and
- are aware both of the Provider’s duties and their personal duties and obligations under the Privacy and Data Protection Requirements and this DPA.
- The Provider will take reasonable steps to ensure the reliability, integrity, and trustworthiness of all of the Provider’s employees with access to the Personal Information.
- Security.
- The Provider will maintain appropriate technical and organizational measures designed to safeguard Personal Information against unauthorized or unlawful processing, access, copying, modification, storage, reproduction, display, or distribution, and against accidental loss, destruction, or damage. These shall include any security measures set out in Appendix B. The Provider will periodically review these measures at least annually to ensure they remain current and complete.
- The Provider will immediately notify the Customer if it becomes aware of any advance in technology and methods of working, which indicate that the parties should adjust their security measures.
- The Provider will take reasonable precautions to preserve the integrity of any Personal Information it processes and to prevent any corruption or loss of the Personal Information, including but not limited to establishing effective back-up and data restoration procedures.
- Security Breaches.
- The Provider will promptly notify the Customer of any Security Breach.
- Immediately following a Security Breach, the parties will co-ordinate with each other to investigate the matter. The Provider will reasonably co-operate with the Customer in the Customer’s handling of the matter, including: making available all relevant records, logs, files, data reporting, and other materials required to comply with all Privacy and Data Protection Requirements or as otherwise reasonably required by the Customer.
- The Provider will not inform any third party of any Security Breach without first obtaining the Customer’s prior written consent, except when law or regulation requires it.
- The Provider agrees that the Customer has the sole right to determine:
- whether to provide notice of the Security Breach to any Data Subjects, regulators, law enforcement agencies, or others, as required by law or regulation or in the Customer’s discretion, including the contents and delivery method of the notice; and
- whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
- The Provider will cover all reasonable expenses associated with the performance of the obligations under clause Clause 2 and 6.c, unless the matter arose from the Customer’s specific instructions, negligence, willful default, or breach of this DPA, in which case the Customer will cover all reasonable expenses.
- The Provider will also reimburse the Customer for actual reasonable expenses the Customer incurs when responding to and mitigating damages, to the extent that the Provider caused a Security Breach, including all costs of notice and any remedy as set out in clause 4.
- Cross-Border Transfers of Personal Information.
- If the Privacy and Data Protection Requirements restrict cross-border Personal Information transfers, the Customer will only transfer that Personal Information to the Provider under the following conditions:
- the Provider, either through its location or participation in a valid cross-border transfer mechanism under the Privacy and Data Protection Requirements, as identified in Appendix A, may legally receive that Personal Information; however the Provider will immediately inform the Customer of any change to that status;
- the Customer obtained valid Data Subject consent to the transfer under the Privacy and Data Protection Requirements; or
- the transfer otherwise complies with the Privacy and Data Protection Requirements for the reasons set forth in Appendix A.
- The Provider will not transfer any Personal Information to another country unless the transfer complies with the Privacy and Data Protection Requirements. In Appendix A, the Provider shall identify the legal basis supporting any transfers it makes and will promptly inform the Customer of any change to that status.
- If the Privacy and Data Protection Requirements restrict cross-border Personal Information transfers, the Customer will only transfer that Personal Information to the Provider under the following conditions:
- Subcontractors.
- The Provider may only authorize a third party (subcontractor) other than those set forth in Appendix A to process the Personal Information if:
- the Customer is given an opportunity to object within 14 days after the Provider supplies the Customer with details regarding the subcontractor’s proposed role and contact information;
- the Provider enters into a written contract with the subcontractor that contains terms substantially the same as those set out in this DPA and, upon the Customer’s written request, provides the Customer with copies of such contracts (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum);
- the Provider maintains control over all Personal Information it entrusts to the subcontractor; and
- the subcontractor shall return or delete the Personal Information after the end of the provision of Subscription Service relating to Provider upon such notice from Customer.
- The Provider shall list all subcontractors that it anticipates using to carry out the Business Purposes in Appendix A and include each subcontractor’s name and location and contact information for the person responsible for privacy and data protection compliance. The Customer’s agreement to this DPA shall authorize the Provider to use the subcontractors as described in Appendix A.
- If a subcontractor fails to fulfill its obligations under such written agreement, the Provider remains responsible to the Customer for the subcontractor’s performance of its obligations.
- Upon the Customer’s written request, the Provider will audit a subcontractor’s compliance with its obligations regarding the Customer’s Personal Information and provide the Customer with a summary of the audit results.
- The Provider may only authorize a third party (subcontractor) other than those set forth in Appendix A to process the Personal Information if:
- Complaints, Data Subject Requests, and Third-Party Rights.
- The Provider shall notify the Customer promptly if it receives any complaint, notice, or communication that directly or indirectly relates to the Personal Information processing or to either party’s compliance with the Privacy and Data Protection Requirements.
- The Provider will notify the Customer within 5 working days if it receives a request from a Data Subject regarding their Personal Information unless the Provider is able to fully handle and respond to such request.
- The Provider will give the Customer its full co-operation and assistance in responding to any complaint, notice, communication, or Data Subject request.
- The Provider shall not disclose the Personal Information to any Data Subject or to a third party unless the disclosure is either at the Customer’s request or instruction, permitted by this DPA, or is otherwise required by law.
- Term and Termination.
- This DPA will remain in full force and effect so long as:
- Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Master Agreement in order to protect Personal Information will remain in full force and effect.
- If a change in any Privacy and Data Protection Requirement prevents either party from fulfilling all or part of its Master Agreement obligations, the parties will suspend the processing of Personal Information until that processing complies with the new requirements. If the parties are unable to bring the Personal Information processing into compliance with the Privacy and Data Protection Requirement within a reasonable time, they may terminate the Master Agreement upon written notice to the other party.
- Data Return and Destruction.
- At the Customer’s request, the Provider will give the Customer a copy of or access to all or part of the Customer’s Personal Information in its possession or control in the format and on the media reasonably specified by the Customer.
- On written notice from the Customer, the Provider will securely destroy or return and not retain all or any Personal Information related to this agreement in its possession or control, except for one copy that it may retain and use for audit purposes only.
- If any law, regulation, or government or regulatory body requires the Provider to retain any documents or materials that the Provider would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends. The Provider may only use this retained Personal Information for the required retention reason or audit purposes.
- If Customer requests, the Provider will certify in writing that it has destroyed the Personal Information within 30 days after receiving the Customer’s request.
- Records.
- The Provider will keep detailed, accurate, and up-to-date records regarding any processing of Personal Information it carries out for the Customer, including but not limited to, the access, control, and security of the Personal Information, approved subcontractors and affiliates, the processing purposes, and any other records required by the applicable Privacy and Data Protection Requirements (the “Records”).
- The Provider will ensure that the Records are sufficient to enable the Customer to verify the Provider’s compliance with its obligations under this DPA.
- The Customer and the Provider shall review the information listed in the Appendices to this DPA annually to confirm its current accuracy and update it if required to reflect current practices.
- Audit.
- At least annually, the Provider will assess its Personal Information processing practices and the information technology and information security controls for all facilities and systems used in complying with its obligations under this DPA.
- Upon the Customer’s written request, the Provider will make the relevant reports available to the Customer for review. The Customer will treat such audit reports as the Provider’s confidential information under this Agreement.
- The Provider will promptly address any issues, concerns, or exceptions noted in the audit reports with the development and implementation of a corrective action plan by the Provider’s management.
- Warranties.
- The Provider warrants and represents that:
- its employees, subcontractors, agents, and any other person or persons accessing Personal Information on its behalf are reliable and trustworthy and have received the required training on the Privacy and Data Protection Requirements relating to the Personal Information; and
- it and anyone operating on its behalf will process the Personal Information in compliance with both the terms of this DPA and all applicable Privacy and Data Protection Requirements and other laws, enactments, regulations, orders, standards, and other similar instruments; and
- it has no reason to believe that any Privacy and Data Protection Requirements prevent it from providing any of the Master Agreement’s contracted services; and
- considering the current technology environment and implementation costs, it will take appropriate technical and organizational measures to prevent the unauthorized or unlawful processing of Personal Information and the accidental loss or destruction of, or damage to, Personal Information, and ensure a level of security appropriate to:
- the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction, or damage;
- the nature of the Personal Information protected; and
- comply with all applicable Privacy and Data Protection Requirements and its information and security policies, including the security measures required in clause 5.
- The Customer warrants and represents that the Provider’s expected use of the Personal Information for the Business Purpose and as specifically instructed by the Customer will comply with all Privacy and Data Protection Requirements.
- The Provider warrants and represents that:
- Indemnification.
- The Provider agrees to indemnify the Customer against all costs, claims, damages, or expenses incurred by the Customer or for which the Customer may become liable due to any failure by the Provider or its employees, subcontractors, or agents to comply with any of its obligations under this DPA or applicable Privacy and Data Protection Requirements.
- The limitations on liability set forth in the Master Agreement shall apply to this DPA’s indemnity or reimbursement obligations.
- Notice
- Any notice or other communication given to a party under or in connection with this DPA shall be in writing and delivered to:
- Clause 16.a does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Appendix A
Personal Information Processing Purposes and Details
Appendix B
Security Measures
APPENDIX C
STANDARD CONTRACTUAL CLAUSES
Controller to Processor
- [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Name | Location | Contact (if available) | Description of Processing |
Microsoft Azure | USA | Hosting services provider | |
SendGrid | USA | In-application email messaging | |
Aha! | USA | Customer feedback portal | |
HubSpot | USA | Email campaign management | |
Snowflake | USA | Data warehouse | |
Ironclad | USA | Clickwrap management | |
Freshdesk | USA | Support desk solution | |
Productboard | USA | Customer feedback portal and product roadmap |
END OF ADDENDUM
Effective May 13th 2022 to February 27th 2023
DownloadTable of Contents
BrainStorm, Inc. Data Protection Addendum
- Definitions.
- The following definitions and rules of interpretation apply in this DPA.
- “Business Purpose” means the services described in the Master Agreement or any other purpose specifically identified in Appendix A.
- “Data Subject” means an individual who is the subject of Personal Information.
- “Personal Information” means any information the Provider processes for the Customer that (a) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in the Provider’s possession or control or that the Provider is likely to have access to, or (b) the relevant Privacy and Data Protection Requirements otherwise define as protected personal information.
- “Processing, processes, or process” means any activity that involves the use of Personal Information or that the relevant Privacy and Data Protection Requirements may otherwise include in the definition of processing, processes, or process. It includes obtaining, recording, or holding the data, or carrying out any operation or set of operations on the data including, but not limited to, organizing, amending, retrieving, using, disclosing, erasing, or destroying it. Processing also includes transferring Personal Information to third parties
- “Privacy and Data Protection Requirements” means all applicable federal, state, and international laws and regulations relating to the processing, protection, or privacy of Personal Information, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction.
- “Security Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Information transmitted, stored or otherwise processed by Provider; or a security breach as defined by applicable Privacy and Data Protection Requirements.
- The following definitions and rules of interpretation apply in this DPA.
- Interpretation.
- This DPA is subject to the terms of the Master Agreement and is incorporated into the Master Agreement. Interpretations and defined terms set forth in the Master Agreement apply to the interpretation of this DPA.
- The Appendices form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Appendices
- A reference to writing or written includes email but not messages sent via fax.
- In the case of conflict or ambiguity between:
- any provision contained in the body of this DPA and any provision contained in the Appendices, the provision in the body of this DPA will prevail;
- the terms of any accompanying invoice or other documents annexed to this DPA and any provision contained in the Appendices, the provision contained in the Appendices will prevail;
- any of the provisions of this DPA and the provisions of the Master Agreement, the provisions of this DPA will prevail; and
- any of the provisions of this agreement and any executed Standard Contractual Clauses, the provisions of the executed Standard Contractual Clauses will prevail.
- Personal Information Types and Processing Purposes.
- The Customer retains control of the Personal Information and remains responsible for its compliance obligations under the applicable Privacy and Data Protection Requirements, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to the Provider.
- Provider’s Obligations.
- Appendix A describes the general Personal Information categories and Data Subject types the Provider may process to fulfill the Business Purposes of the Master Agreement.
- The Provider will only process the Personal Information to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Customer’s instructions. The Provider will not process the Personal Information for any other purpose or in a way that does not comply with this DPA or the Privacy and Data Protection Requirements. The Provider will promptly notify the Customer if, in its opinion, the Customer’s instruction would not comply with the Privacy and Data Protection Requirements.
- The Provider shall promptly comply with any Customer request or instruction requiring the Provider to amend, transfer, or delete the Personal Information, or to stop, mitigate, or remedy any unauthorized processing.
- The Provider will maintain the confidentiality of all Personal Information and will not disclose Personal Information to third parties unless the Customer or this DPA specifically authorizes the disclosure, or as required by law. If a law requires the Provider to process or disclose Personal Information, the Provider shall first inform the Customer of the legal requirement and give the Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice.
- The Provider will reasonably assist the Customer with meeting the Customer’s compliance obligations under the Privacy and Data Protection Requirements, taking into account the nature of the Provider’s processing and the information available to the Provider.
- The Provider will promptly notify the Customer of any changes to Privacy and Data Protection Requirements that may adversely affect the Provider’s performance of the Master Agreement.
- The Customer acknowledges that the Provider is under no duty to investigate the completeness, accuracy, or sufficiency of any specific Customer instructions from Authorized Persons or the Personal Information other than as required under the Privacy and Data Protection Requirements.
- The Provider will only collect Personal Information for the Customer using the notice set forth at info.brainstorminc.com/legal/#privacy-policy.
- Provider’s Employees.
- The Provider will limit Personal Information access to:
- The Provider will ensure that all employees:
- are informed of the Personal Information’s confidential nature and use restrictions;
- have undertaken training on the Privacy and Data Protection Requirements relating to handling Personal Information and how it applies to their particular duties; and
- are aware both of the Provider’s duties and their personal duties and obligations under the Privacy and Data Protection Requirements and this DPA.
- The Provider will take reasonable steps to ensure the reliability, integrity, and trustworthiness of all of the Provider’s employees with access to the Personal Information.
- Security.
- The Provider will maintain appropriate technical and organizational measures designed to safeguard Personal Information against unauthorized or unlawful processing, access, copying, modification, storage, reproduction, display, or distribution, and against accidental loss, destruction, or damage. These shall include any security measures set out in Appendix B. The Provider will periodically review these measures at least annually to ensure they remain current and complete.
- The Provider will immediately notify the Customer if it becomes aware of any advance in technology and methods of working, which indicate that the parties should adjust their security measures.
- The Provider will take reasonable precautions to preserve the integrity of any Personal Information it processes and to prevent any corruption or loss of the Personal Information, including but not limited to establishing effective back-up and data restoration procedures.
- Security Breaches.
- The Provider will promptly notify the Customer of any Security Breach.
- Immediately following a Security Breach, the parties will co-ordinate with each other to investigate the matter. The Provider will reasonably co-operate with the Customer in the Customer’s handling of the matter, including: making available all relevant records, logs, files, data reporting, and other materials required to comply with all Privacy and Data Protection Requirements or as otherwise reasonably required by the Customer.
- The Provider will not inform any third party of any Security Breach without first obtaining the Customer’s prior written consent, except when law or regulation requires it.
- The Provider agrees that the Customer has the sole right to determine:
- whether to provide notice of the Security Breach to any Data Subjects, regulators, law enforcement agencies, or others, as required by law or regulation or in the Customer’s discretion, including the contents and delivery method of the notice; and
- whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
- The Provider will cover all reasonable expenses associated with the performance of the obligations under clause Clause 2 and 6.c, unless the matter arose from the Customer’s specific instructions, negligence, willful default, or breach of this DPA, in which case the Customer will cover all reasonable expenses.
- The Provider will also reimburse the Customer for actual reasonable expenses the Customer incurs when responding to and mitigating damages, to the extent that the Provider caused a Security Breach, including all costs of notice and any remedy as set out in clause 4.
- Cross-Border Transfers of Personal Information.
- If the Privacy and Data Protection Requirements restrict cross-border Personal Information transfers, the Customer will only transfer that Personal Information to the Provider under the following conditions:
- the Provider, either through its location or participation in a valid cross-border transfer mechanism under the Privacy and Data Protection Requirements, as identified in Appendix A, may legally receive that Personal Information; however the Provider will immediately inform the Customer of any change to that status;
- the Customer obtained valid Data Subject consent to the transfer under the Privacy and Data Protection Requirements; or
- the transfer otherwise complies with the Privacy and Data Protection Requirements for the reasons set forth in Appendix A.
- The Provider will not transfer any Personal Information to another country unless the transfer complies with the Privacy and Data Protection Requirements. In Appendix A, the Provider shall identify the legal basis supporting any transfers it makes and will promptly inform the Customer of any change to that status.
- If the Privacy and Data Protection Requirements restrict cross-border Personal Information transfers, the Customer will only transfer that Personal Information to the Provider under the following conditions:
- Subcontractors.
- The Provider may only authorize a third party (subcontractor) other than those set forth in Appendix A to process the Personal Information if:
- the Customer is given an opportunity to object within 14 days after the Provider supplies the Customer with details regarding the subcontractor’s proposed role and contact information;
- the Provider enters into a written contract with the subcontractor that contains terms substantially the same as those set out in this DPA and, upon the Customer’s written request, provides the Customer with copies of such contracts (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum);
- the Provider maintains control over all Personal Information it entrusts to the subcontractor; and
- the subcontractor shall return or delete the Personal Information after the end of the provision of Subscription Service relating to Provider upon such notice from Customer.
- The Provider shall list all subcontractors that it anticipates using to carry out the Business Purposes in Appendix A and include each subcontractor’s name and location and contact information for the person responsible for privacy and data protection compliance. The Customer’s agreement to this DPA shall authorize the Provider to use the subcontractors as described in Appendix A.
- If a subcontractor fails to fulfill its obligations under such written agreement, the Provider remains responsible to the Customer for the subcontractor’s performance of its obligations.
- Upon the Customer’s written request, the Provider will audit a subcontractor’s compliance with its obligations regarding the Customer’s Personal Information and provide the Customer with a summary of the audit results.
- The Provider may only authorize a third party (subcontractor) other than those set forth in Appendix A to process the Personal Information if:
- Complaints, Data Subject Requests, and Third-Party Rights.
- The Provider shall notify the Customer promptly if it receives any complaint, notice, or communication that directly or indirectly relates to the Personal Information processing or to either party’s compliance with the Privacy and Data Protection Requirements.
- The Provider will notify the Customer within 5 working days if it receives a request from a Data Subject regarding their Personal Information unless the Provider is able to fully handle and respond to such request.
- The Provider will give the Customer its full co-operation and assistance in responding to any complaint, notice, communication, or Data Subject request.
- The Provider shall not disclose the Personal Information to any Data Subject or to a third party unless the disclosure is either at the Customer’s request or instruction, permitted by this DPA, or is otherwise required by law.
- Term and Termination.
- This DPA will remain in full force and effect so long as:
- Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Master Agreement in order to protect Personal Information will remain in full force and effect.
- If a change in any Privacy and Data Protection Requirement prevents either party from fulfilling all or part of its Master Agreement obligations, the parties will suspend the processing of Personal Information until that processing complies with the new requirements. If the parties are unable to bring the Personal Information processing into compliance with the Privacy and Data Protection Requirement within a reasonable time, they may terminate the Master Agreement upon written notice to the other party.
- Data Return and Destruction.
- At the Customer’s request, the Provider will give the Customer a copy of or access to all or part of the Customer’s Personal Information in its possession or control in the format and on the media reasonably specified by the Customer.
- On written notice from the Customer, the Provider will securely destroy or return and not retain all or any Personal Information related to this agreement in its possession or control, except for one copy that it may retain and use for audit purposes only.
- If any law, regulation, or government or regulatory body requires the Provider to retain any documents or materials that the Provider would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends. The Provider may only use this retained Personal Information for the required retention reason or audit purposes.
- If Customer requests, the Provider will certify in writing that it has destroyed the Personal Information within 30 days after receiving the Customer’s request.
- Records.
- The Provider will keep detailed, accurate, and up-to-date records regarding any processing of Personal Information it carries out for the Customer, including but not limited to, the access, control, and security of the Personal Information, approved subcontractors and affiliates, the processing purposes, and any other records required by the applicable Privacy and Data Protection Requirements (the “Records”).
- The Provider will ensure that the Records are sufficient to enable the Customer to verify the Provider’s compliance with its obligations under this DPA.
- The Customer and the Provider shall review the information listed in the Appendices to this DPA annually to confirm its current accuracy and update it if required to reflect current practices.
- Audit.
- At least annually, the Provider will assess its Personal Information processing practices and the information technology and information security controls for all facilities and systems used in complying with its obligations under this DPA.
- Upon the Customer’s written request, the Provider will make the relevant reports available to the Customer for review. The Customer will treat such audit reports as the Provider’s confidential information under this Agreement.
- The Provider will promptly address any issues, concerns, or exceptions noted in the audit reports with the development and implementation of a corrective action plan by the Provider’s management.
- Warranties.
- The Provider warrants and represents that:
- its employees, subcontractors, agents, and any other person or persons accessing Personal Information on its behalf are reliable and trustworthy and have received the required training on the Privacy and Data Protection Requirements relating to the Personal Information; and
- it and anyone operating on its behalf will process the Personal Information in compliance with both the terms of this DPA and all applicable Privacy and Data Protection Requirements and other laws, enactments, regulations, orders, standards, and other similar instruments; and
- it has no reason to believe that any Privacy and Data Protection Requirements prevent it from providing any of the Master Agreement’s contracted services; and
- considering the current technology environment and implementation costs, it will take appropriate technical and organizational measures to prevent the unauthorized or unlawful processing of Personal Information and the accidental loss or destruction of, or damage to, Personal Information, and ensure a level of security appropriate to:
- the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction, or damage;
- the nature of the Personal Information protected; and
- comply with all applicable Privacy and Data Protection Requirements and its information and security policies, including the security measures required in clause 5.
- The Customer warrants and represents that the Provider’s expected use of the Personal Information for the Business Purpose and as specifically instructed by the Customer will comply with all Privacy and Data Protection Requirements.
- The Provider warrants and represents that:
- Indemnification.
- The Provider agrees to indemnify the Customer against all costs, claims, damages, or expenses incurred by the Customer or for which the Customer may become liable due to any failure by the Provider or its employees, subcontractors, or agents to comply with any of its obligations under this DPA or applicable Privacy and Data Protection Requirements.
- The limitations on liability set forth in the Master Agreement shall apply to this DPA’s indemnity or reimbursement obligations.
- Notice
- Any notice or other communication given to a party under or in connection with this DPA shall be in writing and delivered to:
- Clause 16.a does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Appendix A
Personal Information Processing Purposes and Details
Appendix B
Security Measures
APPENDIX C
STANDARD CONTRACTUAL CLAUSES
Controller to Processor
- [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Name | Location | Contact (if available) | Description of Processing |
Microsoft Azure | USA | Hosting services provider | |
SendGrid | USA | In-application email messaging | |
Aha! | USA | Customer feedback portal | |
HubSpot | USA | Email campaign management | |
Snowflake | USA | Data warehouse | |
Ironclad | USA | Clickwrap management | |
Freshdesk | USA | Support desk solution |
END OF ADDENDUM
Effective April 15th 2022 to May 13th 2022
DownloadTable of Contents
BrainStorm, Inc. Data Protection Addendum
- Definitions and Interpretation.
- The following definitions and rules of interpretation apply in this DPA.
- “Business Purpose” means the services described in the Master Agreement or any other purpose specifically identified in Appendix A.
- “Data Subject” means an individual who is the subject of Personal Information.
- “Personal Information” means any information the Provider processes for the Customer that (a) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in the Provider’s possession or control or that the Provider is likely to have access to, or (b) the relevant Privacy and Data Protection Requirements otherwise define as protected personal information.
- “Processing, processes, or process” means any activity that involves the use of Personal Information or that the relevant Privacy and Data Protection Requirements may otherwise include in the definition of processing, processes, or process. It includes obtaining, recording, or holding the data, or carrying out any operation or set of operations on the data including, but not limited to, organizing, amending, retrieving, using, disclosing, erasing, or destroying it. Processing also includes transferring Personal Information to third parties
- “Privacy and Data Protection Requirements” means all applicable federal, state, and international laws and regulations relating to the processing, protection, or privacy of Personal Information, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction.
- “Security Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Information transmitted, stored or otherwise processed by Provider; or a security breach as defined by applicable Privacy and Data Protection Requirements.
- This DPA is subject to the terms of the Master Agreement and is incorporated into the Master Agreement. Interpretations and defined terms set forth in the Master Agreement apply to the interpretation of this DPA.
- The Appendices form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Appendices
- A reference to writing or written includes email but not messages sent via fax.
- In the case of conflict or ambiguity between:
- any provision contained in the body of this DPA and any provision contained in the Appendices, the provision in the body of this DPA will prevail;
- the terms of any accompanying invoice or other documents annexed to this DPA and any provision contained in the Appendices, the provision contained in the Appendices will prevail;
- any of the provisions of this DPA and the provisions of the Master Agreement, the provisions of this DPA will prevail; and
- any of the provisions of this agreement and any executed Standard Contractual Clauses, the provisions of the executed Standard Contractual Clauses will prevail.
- The following definitions and rules of interpretation apply in this DPA.
- Personal Information Types and Processing Purposes.
- The Customer retains control of the Personal Information and remains responsible for its compliance obligations under the applicable Privacy and Data Protection Requirements, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to the Provider.
- Appendix A describes the general Personal Information categories and Data Subject types the Provider may process to fulfill the Business Purposes of the Master Agreement.
- Provider’s Obligations
- The Provider will only process the Personal Information to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Customer’s instructions. The Provider will not process the Personal Information for any other purpose or in a way that does not comply with this DPA or the Privacy and Data Protection Requirements. The Provider will promptly notify the Customer if, in its opinion, the Customer’s instruction would not comply with the Privacy and Data Protection Requirements.
- The Provider shall promptly comply with any Customer request or instruction requiring the Provider to amend, transfer, or delete the Personal Information, or to stop, mitigate, or remedy any unauthorized processing.
- The Provider will maintain the confidentiality of all Personal Information and will not disclose Personal Information to third parties unless the Customer or this DPA specifically authorizes the disclosure, or as required by law. If a law requires the Provider to process or disclose Personal Information, the Provider shall first inform the Customer of the legal requirement and give the Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice.
- The Provider will reasonably assist the Customer with meeting the Customer’s compliance obligations under the Privacy and Data Protection Requirements, taking into account the nature of the Provider’s processing and the information available to the Provider.
- The Provider will promptly notify the Customer of any changes to Privacy and Data Protection Requirements that may adversely affect the Provider’s performance of the Master Agreement.
- The Customer acknowledges that the Provider is under no duty to investigate the completeness, accuracy, or sufficiency of any specific Customer instructions from Authorized Persons or the Personal Information other than as required under the Privacy and Data Protection Requirements.
- The Provider will only collect Personal Information for the Customer using the notice set forth at info.brainstorminc.com/legal/#privacy-policy.
- Provider’s Employees
- The Provider will limit Personal Information access to:
- The Provider will ensure that all employees:
- are informed of the Personal Information’s confidential nature and use restrictions;
- have undertaken training on the Privacy and Data Protection Requirements relating to handling Personal Information and how it applies to their particular duties; and
- are aware both of the Provider’s duties and their personal duties and obligations under the Privacy and Data Protection Requirements and this DPA.
- The Provider will take reasonable steps to ensure the reliability, integrity, and trustworthiness of all of the Provider’s employees with access to the Personal Information.
- Security.
- The Provider will maintain appropriate technical and organizational measures designed to safeguard Personal Information against unauthorized or unlawful processing, access, copying, modification, storage, reproduction, display, or distribution, and against accidental loss, destruction, or damage. These shall include any security measures set out in Appendix B. The Provider will periodically review these measures at least annually to ensure they remain current and complete.
- The Provider will immediately notify the Customer if it becomes aware of any advance in technology and methods of working, which indicate that the parties should adjust their security measures.
- The Provider will take reasonable precautions to preserve the integrity of any Personal Information it processes and to prevent any corruption or loss of the Personal Information, including but not limited to establishing effective back-up and data restoration procedures.
- Security Breaches.
- The Provider will promptly notify the Customer of any Security Breach.
- Immediately following a Security Breach, the parties will co-ordinate with each other to investigate the matter. The Provider will reasonably co-operate with the Customer in the Customer’s handling of the matter, including: making available all relevant records, logs, files, data reporting, and other materials required to comply with all Privacy and Data Protection Requirements or as otherwise reasonably required by the Customer.
- The Provider will not inform any third party of any Security Breach without first obtaining the Customer’s prior written consent, except when law or regulation requires it.
- The Provider agrees that the Customer has the sole right to determine:
- whether to provide notice of the Security Breach to any Data Subjects, regulators, law enforcement agencies, or others, as required by law or regulation or in the Customer’s discretion, including the contents and delivery method of the notice; and
- whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
- The Provider will cover all reasonable expenses associated with the performance of the obligations under clause Clause 2 and 6.c, unless the matter arose from the Customer’s specific instructions, negligence, willful default, or breach of this DPA, in which case the Customer will cover all reasonable expenses.
- The Provider will also reimburse the Customer for actual reasonable expenses the Customer incurs when responding to and mitigating damages, to the extent that the Provider caused a Security Breach, including all costs of notice and any remedy as set out in clause 4.
- Cross-Border Transfers of Personal Information.
- If the Privacy and Data Protection Requirements restrict cross-border Personal Information transfers, the Customer will only transfer that Personal Information to the Provider under the following conditions:
- the Provider, either through its location or participation in a valid cross-border transfer mechanism under the Privacy and Data Protection Requirements, as identified in Appendix A, may legally receive that Personal Information; however the Provider will immediately inform the Customer of any change to that status;
- the Customer obtained valid Data Subject consent to the transfer under the Privacy and Data Protection Requirements; or
- the transfer otherwise complies with the Privacy and Data Protection Requirements for the reasons set forth in Appendix A.
- The Provider will not transfer any Personal Information to another country unless the transfer complies with the Privacy and Data Protection Requirements. In Appendix A, the Provider shall identify the legal basis supporting any transfers it makes and will promptly inform the Customer of any change to that status.
- If the Privacy and Data Protection Requirements restrict cross-border Personal Information transfers, the Customer will only transfer that Personal Information to the Provider under the following conditions:
- Subcontractors.
- The Provider may only authorize a third party (subcontractor) other than those set forth in Appendix A to process the Personal Information if:
- the Customer is given an opportunity to object within 14 days after the Provider supplies the Customer with details regarding the subcontractor’s proposed role and contact information;
- the Provider enters into a written contract with the subcontractor that contains terms substantially the same as those set out in this DPA and, upon the Customer’s written request, provides the Customer with copies of such contracts (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum);
- the Provider maintains control over all Personal Information it entrusts to the subcontractor; and
- the subcontractor shall return or delete the Personal Information after the end of the provision of Subscription Service relating to Provider upon such notice from Customer.
- The Provider shall list all subcontractors that it anticipates using to carry out the Business Purposes in Appendix A and include each subcontractor’s name and location and contact information for the person responsible for privacy and data protection compliance. The Customer’s agreement to this DPA shall authorize the Provider to use the subcontractors as described in Appendix A.
- If a subcontractor fails to fulfill its obligations under such written agreement, the Provider remains responsible to the Customer for the subcontractor’s performance of its obligations.
- Upon the Customer’s written request, the Provider will audit a subcontractor’s compliance with its obligations regarding the Customer’s Personal Information and provide the Customer with a summary of the audit results.
- The Provider may only authorize a third party (subcontractor) other than those set forth in Appendix A to process the Personal Information if:
- Complaints, Data Subject Requests, and Third-Party Rights.
- The Provider shall notify the Customer promptly if it receives any complaint, notice, or communication that directly or indirectly relates to the Personal Information processing or to either party’s compliance with the Privacy and Data Protection Requirements.
- The Provider will notify the Customer within 5 working days if it receives a request from a Data Subject regarding their Personal Information unless the Provider is able to fully handle and respond to such request.
- The Provider will give the Customer its full co-operation and assistance in responding to any complaint, notice, communication, or Data Subject request.
- The Provider shall not disclose the Personal Information to any Data Subject or to a third party unless the disclosure is either at the Customer’s request or instruction, permitted by this DPA, or is otherwise required by law.
- Term and Termination.
- This DPA will remain in full force and effect so long as:
- Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Master Agreement in order to protect Personal Information will remain in full force and effect.
- If a change in any Privacy and Data Protection Requirement prevents either party from fulfilling all or part of its Master Agreement obligations, the parties will suspend the processing of Personal Information until that processing complies with the new requirements. If the parties are unable to bring the Personal Information processing into compliance with the Privacy and Data Protection Requirement within a reasonable time, they may terminate the Master Agreement upon written notice to the other party.
- Data Return and Destruction.
- At the Customer’s request, the Provider will give the Customer a copy of or access to all or part of the Customer’s Personal Information in its possession or control in the format and on the media reasonably specified by the Customer.
- On written notice from the Customer, the Provider will securely destroy or return and not retain all or any Personal Information related to this agreement in its possession or control, except for one copy that it may retain and use for audit purposes only.
- If any law, regulation, or government or regulatory body requires the Provider to retain any documents or materials that the Provider would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends. The Provider may only use this retained Personal Information for the required retention reason or audit purposes.
- If Customer requests, the Provider will certify in writing that it has destroyed the Personal Information within 30 days after receiving the Customer’s request.
- Records.
- The Provider will keep detailed, accurate, and up-to-date records regarding any processing of Personal Information it carries out for the Customer, including but not limited to, the access, control, and security of the Personal Information, approved subcontractors and affiliates, the processing purposes, and any other records required by the applicable Privacy and Data Protection Requirements (the “Records”).
- The Provider will ensure that the Records are sufficient to enable the Customer to verify the Provider’s compliance with its obligations under this DPA.
- The Customer and the Provider shall review the information listed in the Appendices to this DPA annually to confirm its current accuracy and update it if required to reflect current practices.
- Audit.
- At least annually, the Provider will assess its Personal Information processing practices and the information technology and information security controls for all facilities and systems used in complying with its obligations under this DPA.
- Upon the Customer’s written request, the Provider will make the relevant reports available to the Customer for review. The Customer will treat such audit reports as the Provider’s confidential information under this Agreement.
- The Provider will promptly address any issues, concerns, or exceptions noted in the audit reports with the development and implementation of a corrective action plan by the Provider’s management.
- Warranties.
- The Provider warrants and represents that:
- its employees, subcontractors, agents, and any other person or persons accessing Personal Information on its behalf are reliable and trustworthy and have received the required training on the Privacy and Data Protection Requirements relating to the Personal Information; and
- it and anyone operating on its behalf will process the Personal Information in compliance with both the terms of this DPA and all applicable Privacy and Data Protection Requirements and other laws, enactments, regulations, orders, standards, and other similar instruments; and
- it has no reason to believe that any Privacy and Data Protection Requirements prevent it from providing any of the Master Agreement’s contracted services; and
- considering the current technology environment and implementation costs, it will take appropriate technical and organizational measures to prevent the unauthorized or unlawful processing of Personal Information and the accidental loss or destruction of, or damage to, Personal Information, and ensure a level of security appropriate to:
- the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction, or damage; and
- the nature of the Personal Information protected; and
- comply with all applicable Privacy and Data Protection Requirement and its information and security policies, including the security measures required in clause 5.
- The Customer warrants and represents that the Provider’s expected use of the Personal Information for the Business Purpose and as specifically instructed by the Customer will comply with all Privacy and Data Protection Requirements.
- The Provider warrants and represents that:
- Indemnification.
- The Provider agrees to indemnify the Customer against all costs, claims, damages, or expenses incurred by the Customer or for which the Customer may become liable due to any failure by the Provider or its employees, subcontractors, or agents to comply with any of its obligations under this DPA or applicable Privacy and Data Protection Requirements.
- The limitations on liability set forth in the Master Agreement shall apply to this DPA’s indemnity or reimbursement obligations.
- Notice
- Any notice or other communication given to a party under or in connection with this DPA shall be in writing and delivered to:
- Clause 16.a does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Appendix A
Personal Information Processing Purposes and Details
Appendix B
Security Measures
APPENDIX C
STANDARD CONTRACTUAL CLAUSES
Controller to Processor
- [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Name | Location | Contact (if available) | Description of Processing |
Microsoft Azure | USA | Hosting services provider | |
SendGrid | USA | In-application email messaging | |
Aha! | USA | Customer feedback portal | |
HubSpot | USA | Email campaign management | |
Snowflake | USA | Data warehouse | |
Ironclad | USA | Clickwrap management | |
Freshdesk | USA | Support desk solution |
END OF ADDENDUM
Effective April 15th 2022 to April 15th 2022
DownloadTable of Contents
DATA PROTECTION ADDENDUM
- Definitions and Interpretation.
- The following definitions and rules of interpretation apply in this DPA.
- “Business Purpose” means the services described in the Master Agreement or any other purpose specifically identified in Appendix A.
- “Data Subject” means an individual who is the subject of Personal Information.
- “Personal Information” means any information the Provider processes for the Customer that (a) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in the Provider’s possession or control or that the Provider is likely to have access to, or (b) the relevant Privacy and Data Protection Requirements otherwise define as protected personal information.
- “Processing, processes, or process” means any activity that involves the use of Personal Information or that the relevant Privacy and Data Protection Requirements may otherwise include in the definition of processing, processes, or process. It includes obtaining, recording, or holding the data, or carrying out any operation or set of operations on the data including, but not limited to, organizing, amending, retrieving, using, disclosing, erasing, or destroying it. Processing also includes transferring Personal Information to third parties
- “Privacy and Data Protection Requirements” means all applicable federal, state, and international laws and regulations relating to the processing, protection, or privacy of Personal Information, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction.
- “Security Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Information transmitted, stored or otherwise processed by Provider; or a security breach as defined by applicable Privacy and Data Protection Requirements.
- This DPA is subject to the terms of the Master Agreement and is incorporated into the Master Agreement. Interpretations and defined terms set forth in the Master Agreement apply to the interpretation of this DPA.
- The Appendices form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Appendices
- A reference to writing or written includes email but not messages sent via fax.
- In the case of conflict or ambiguity between:
- any provision contained in the body of this DPA and any provision contained in the Appendices, the provision in the body of this DPA will prevail;
- the terms of any accompanying invoice or other documents annexed to this DPA and any provision contained in the Appendices, the provision contained in the Appendices will prevail;
- any of the provisions of this DPA and the provisions of the Master Agreement, the provisions of this DPA will prevail; and
- any of the provisions of this agreement and any executed Standard Contractual Clauses, the provisions of the executed Standard Contractual Clauses will prevail.
- The following definitions and rules of interpretation apply in this DPA.
- Personal Information Types and Processing Purposes.
- The Customer retains control of the Personal Information and remains responsible for its compliance obligations under the applicable Privacy and Data Protection Requirements, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to the Provider.
- Appendix A describes the general Personal Information categories and Data Subject types the Provider may process to fulfill the Business Purposes of the Master Agreement.
- Provider’s Obligations
- The Provider will only process the Personal Information to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Customer’s instructions. The Provider will not process the Personal Information for any other purpose or in a way that does not comply with this DPA or the Privacy and Data Protection Requirements. The Provider will promptly notify the Customer if, in its opinion, the Customer’s instruction would not comply with the Privacy and Data Protection Requirements.
- The Provider shall promptly comply with any Customer request or instruction requiring the Provider to amend, transfer, or delete the Personal Information, or to stop, mitigate, or remedy any unauthorized processing.
- The Provider will maintain the confidentiality of all Personal Information and will not disclose Personal Information to third parties unless the Customer or this DPA specifically authorizes the disclosure, or as required by law. If a law requires the Provider to process or disclose Personal Information, the Provider shall first inform the Customer of the legal requirement and give the Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice.
- The Provider will reasonably assist the Customer with meeting the Customer’s compliance obligations under the Privacy and Data Protection Requirements, taking into account the nature of the Provider’s processing and the information available to the Provider.
- The Provider will promptly notify the Customer of any changes to Privacy and Data Protection Requirements that may adversely affect the Provider’s performance of the Master Agreement.
- The Customer acknowledges that the Provider is under no duty to investigate the completeness, accuracy, or sufficiency of any specific Customer instructions from Authorized Persons or the Personal Information other than as required under the Privacy and Data Protection Requirements.
- The Provider will only collect Personal Information for the Customer using the notice set forth at info.brainstorminc.com/legal/#privacy-policy.
- Provider’s Employees
- The Provider will limit Personal Information access to:
- The Provider will ensure that all employees:
- are informed of the Personal Information’s confidential nature and use restrictions;
- have undertaken training on the Privacy and Data Protection Requirements relating to handling Personal Information and how it applies to their particular duties; and
- are aware both of the Provider’s duties and their personal duties and obligations under the Privacy and Data Protection Requirements and this DPA.
- The Provider will take reasonable steps to ensure the reliability, integrity, and trustworthiness of all of the Provider’s employees with access to the Personal Information.
- Security.
- The Provider will maintain appropriate technical and organizational measures designed to safeguard Personal Information against unauthorized or unlawful processing, access, copying, modification, storage, reproduction, display, or distribution, and against accidental loss, destruction, or damage. These shall include any security measures set out in Appendix B. The Provider will periodically review these measures at least annually to ensure they remain current and complete.
- The Provider will immediately notify the Customer if it becomes aware of any advance in technology and methods of working, which indicate that the parties should adjust their security measures.
- The Provider will take reasonable precautions to preserve the integrity of any Personal Information it processes and to prevent any corruption or loss of the Personal Information, including but not limited to establishing effective back-up and data restoration procedures.
- Security Breaches.
- The Provider will promptly notify the Customer of any Security Breach.
- Immediately following a Security Breach, the parties will co-ordinate with each other to investigate the matter. The Provider will reasonably co-operate with the Customer in the Customer’s handling of the matter, including: making available all relevant records, logs, files, data reporting, and other materials required to comply with all Privacy and Data Protection Requirements or as otherwise reasonably required by the Customer.
- The Provider will not inform any third party of any Security Breach without first obtaining the Customer’s prior written consent, except when law or regulation requires it.
- The Provider agrees that the Customer has the sole right to determine:
- whether to provide notice of the Security Breach to any Data Subjects, regulators, law enforcement agencies, or others, as required by law or regulation or in the Customer’s discretion, including the contents and delivery method of the notice; and
- whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
- The Provider will cover all reasonable expenses associated with the performance of the obligations under clause Clause 2 and 6.c, unless the matter arose from the Customer’s specific instructions, negligence, willful default, or breach of this DPA, in which case the Customer will cover all reasonable expenses.
- The Provider will also reimburse the Customer for actual reasonable expenses the Customer incurs when responding to and mitigating damages, to the extent that the Provider caused a Security Breach, including all costs of notice and any remedy as set out in clause 4.
- Cross-Border Transfers of Personal Information.
- If the Privacy and Data Protection Requirements restrict cross-border Personal Information transfers, the Customer will only transfer that Personal Information to the Provider under the following conditions:
- the Provider, either through its location or participation in a valid cross-border transfer mechanism under the Privacy and Data Protection Requirements, as identified in Appendix A, may legally receive that Personal Information; however the Provider will immediately inform the Customer of any change to that status;
- the Customer obtained valid Data Subject consent to the transfer under the Privacy and Data Protection Requirements; or
- the transfer otherwise complies with the Privacy and Data Protection Requirements for the reasons set forth in Appendix A.
- The Provider will not transfer any Personal Information to another country unless the transfer complies with the Privacy and Data Protection Requirements. In Appendix A, the Provider shall identify the legal basis supporting any transfers it makes and will promptly inform the Customer of any change to that status.
- If the Privacy and Data Protection Requirements restrict cross-border Personal Information transfers, the Customer will only transfer that Personal Information to the Provider under the following conditions:
- Subcontractors.
- The Provider may only authorize a third party (subcontractor) other than those set forth in Appendix A to process the Personal Information if:
- the Customer is given an opportunity to object within 14 days after the Provider supplies the Customer with details regarding the subcontractor’s proposed role and contact information;
- the Provider enters into a written contract with the subcontractor that contains terms substantially the same as those set out in this DPA and, upon the Customer’s written request, provides the Customer with copies of such contracts (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum);
- the Provider maintains control over all Personal Information it entrusts to the subcontractor; and
- the subcontractor shall return or delete the Personal Information after the end of the provision of Services relating to Provider upon such notice from Customer.
- The Provider shall list all subcontractors that it anticipates using to carry out the Business Purposes in Appendix A and include each subcontractor’s name and location and contact information for the person responsible for privacy and data protection compliance. The Customer’s agreement to this DPA shall authorize the Provider to use the subcontractors as described in Appendix A.
- If a subcontractor fails to fulfill its obligations under such written agreement, the Provider remains responsible to the Customer for the subcontractor’s performance of its obligations.
- Upon the Customer’s written request, the Provider will audit a subcontractor’s compliance with its obligations regarding the Customer’s Personal Information and provide the Customer with a summary of the audit results.
- The Provider may only authorize a third party (subcontractor) other than those set forth in Appendix A to process the Personal Information if:
- Complaints, Data Subject Requests, and Third-Party Rights.
- The Provider shall notify the Customer promptly if it receives any complaint, notice, or communication that directly or indirectly relates to the Personal Information processing or to either party’s compliance with the Privacy and Data Protection Requirements.
- The Provider will notify the Customer within 5 working days if it receives a request from a Data Subject regarding their Personal Information unless the Provider is able to fully handle and respond to such request.
- The Provider will give the Customer its full co-operation and assistance in responding to any complaint, notice, communication, or Data Subject request.
- The Provider shall not disclose the Personal Information to any Data Subject or to a third party unless the disclosure is either at the Customer’s request or instruction, permitted by this DPA, or is otherwise required by law.
- Term and Termination.
- This DPA will remain in full force and effect so long as:
- Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Master Agreement in order to protect Personal Information will remain in full force and effect.
- If a change in any Privacy and Data Protection Requirement prevents either party from fulfilling all or part of its Master Agreement obligations, the parties will suspend the processing of Personal Information until that processing complies with the new requirements. If the parties are unable to bring the Personal Information processing into compliance with the Privacy and Data Protection Requirement within a reasonable time, they may terminate the Master Agreement upon written notice to the other party.
- Data Return and Destruction.
- At the Customer’s request, the Provider will give the Customer a copy of or access to all or part of the Customer’s Personal Information in its possession or control in the format and on the media reasonably specified by the Customer.
- On written notice from the Customer, the Provider will securely destroy or return and not retain all or any Personal Information related to this agreement in its possession or control, except for one copy that it may retain and use for audit purposes only.
- If any law, regulation, or government or regulatory body requires the Provider to retain any documents or materials that the Provider would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends. The Provider may only use this retained Personal Information for the required retention reason or audit purposes.
- If Customer requests, the Provider will certify in writing that it has destroyed the Personal Information within 30 days after receiving the Customer’s request.
- Records.
- The Provider will keep detailed, accurate, and up-to-date records regarding any processing of Personal Information it carries out for the Customer, including but not limited to, the access, control, and security of the Personal Information, approved subcontractors and affiliates, the processing purposes, and any other records required by the applicable Privacy and Data Protection Requirements (the “Records”).
- The Provider will ensure that the Records are sufficient to enable the Customer to verify the Provider’s compliance with its obligations under this DPA.
- The Customer and the Provider shall review the information listed in the Appendices to this DPA annually to confirm its current accuracy and update it if required to reflect current practices.
- Audit.
- At least annually, the Provider will assess its Personal Information processing practices and the information technology and information security controls for all facilities and systems used in complying with its obligations under this DPA.
- Upon the Customer’s written request, the Provider will make the relevant reports available to the Customer for review. The Customer will treat such audit reports as the Provider’s confidential information under this Agreement.
- The Provider will promptly address any issues, concerns, or exceptions noted in the audit reports with the development and implementation of a corrective action plan by the Provider’s management.
- Warranties.
- The Provider warrants and represents that:
- its employees, subcontractors, agents, and any other person or persons accessing Personal Information on its behalf are reliable and trustworthy and have received the required training on the Privacy and Data Protection Requirements relating to the Personal Information; and
- it and anyone operating on its behalf will process the Personal Information in compliance with both the terms of this DPA and all applicable Privacy and Data Protection Requirements and other laws, enactments, regulations, orders, standards, and other similar instruments; and
- it has no reason to believe that any Privacy and Data Protection Requirements prevent it from providing any of the Master Agreement’s contracted services; and
- considering the current technology environment and implementation costs, it will take appropriate technical and organizational measures to prevent the unauthorized or unlawful processing of Personal Information and the accidental loss or destruction of, or damage to, Personal Information, and ensure a level of security appropriate to:
- the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction, or damage; and
- the nature of the Personal Information protected; and
- comply with all applicable Privacy and Data Protection Requirement and its information and security policies, including the security measures required in clause 5.
- The Customer warrants and represents that the Provider’s expected use of the Personal Information for the Business Purpose and as specifically instructed by the Customer will comply with all Privacy and Data Protection Requirements.
- The Provider warrants and represents that:
- Indemnification.
- The Provider agrees to indemnify the Customer against all costs, claims, damages, or expenses incurred by the Customer or for which the Customer may become liable due to any failure by the Provider or its employees, subcontractors, or agents to comply with any of its obligations under this DPA or applicable Privacy and Data Protection Requirements.
- The limitations on liability set forth in the Master Agreement shall apply to this DPA’s indemnity or reimbursement obligations.
- Notice
- Any notice or other communication given to a party under or in connection with this DPA shall be in writing and delivered to:
- Clause 16.a does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Appendix A
Personal Information Processing Purposes and Details
Appendix B
Security Measures
APPENDIX C
STANDARD CONTRACTUAL CLAUSES
Controller to Processor
- [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Name | Location | Contact (if available) | Description of Processing |
Microsoft Azure | USA | Hosting services provider | |
SendGrid | USA | In-application email messaging | |
Aha! | USA | Customer feedback portal | |
HubSpot | USA | Email campaign management | |
Snowflake | USA | Data warehouse | |
Ironclad | USA | Clickwrap management | |
Freshdesk | USA | Support desk solution |
END OF ADDENDUM
QuickHelp Content Submission Policy
Effective August 30th 2023
DownloadTable of Contents
QUICKHELP CONTENT SUBMISSION POLICY
- The Service contains interactive features that allow users to post, upload, submit, publish, display, or transmit content or other materials on or through the Service and that allow BSI to deliver the Content back to Customer and its users. All Content must comply with the Content Standards set forth in paragraph 4 below (the “Content Standards”). You are responsible for any Content submitted or contributed to the Service by You, including its legality, reliability, accuracy, and appropriateness. BSI is not responsible or liable for the content or accuracy of any Content posted by Customer, You or any other users. For purposes of this Policy, “Content” means all data, text, information, images, audio and video clips, sounds, musical works, works of authorship, links, and other content or materials that is created or originally provided by You or any other user of the Service and submitted, uploaded, posted or displayed on or via the Service. Content shall not include any content prepared or created by or for BSI or that is originally provided to You or Customer by BSI.
- Reservation of Rights; License to Use. By providing Content to BSI via the Service, You represent and warrant that You or Customer own or control all rights in and to the Content uploaded or posted on or through the Service. Except for Content, as between the parties, BSI and its licensors own and retain all right, title and interest in and to all other content created, submitted, uploaded, posted or displayed by, to, on or through the Service. BSI does not claim ownership of any Content posted on or uploaded to the Service by You, Customer or any other user of the Service. Instead, and only as necessary for BSI to provide the Service, You and Customer hereby grant to BSI a worldwide, assignable, sublicensable, royalty-free, irrevocable, perpetual license to display, perform, reproduce, distribute, transmit, create Derivatives of, provide user access to, and otherwise use Content and any Derivatives. For purposes of the Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- You agree not to upload any Content to the Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries), including, but not limited to, copyright and trademark laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Service, or (iv) otherwise interferes with the proper working of the Service.
- Content Standards. Content must not (i) contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with the Agreement, (v) be likely to deceive any person, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person, (viii) impersonate any person, or misrepresent Customer’s or any user’s identity or affiliation with any person or organization, (ix) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (x) give the impression that Content emanates from or is endorsed by BSI or any other person or entity. The foregoing restrictions are collectively referred to as the “Content Standards.”
- Violations of this Policy may, at BSI’s sole discretion, result in the suspension or termination of Your and/or Customer’s access to the Service and/or immediate removal of Content. If Content uploaded by You violates this Policy, You and/or Customer will bear legal responsibility for that Content. By uploading Content to the Service, You and Customer agree that BSI is not responsible for Content uploaded.
- Changes and Updates to This Policy. BSI reserves the right, in its sole discretion, to change the terms and conditions contained in this Policy from time to time. Unless BSI makes a change for legal or administrative reasons, BSI will provide reasonable advance notice before the updated terms to this Policy become effective (“Updated Policy Terms”). All Updated Policy Terms will be posted to the Service, and will be effective as of the time of posting, or such later date as may be specified in the Updated Policy Terms.
Effective August 30th 2023 to August 30th 2023
DownloadTable of Contents
QUICKHELP CONTENT SUBMISSION POLICY
- The Service contains interactive features that allow users to post, upload, submit, publish, display, or transmit content or other materials on or through the Service and that allow BSI to deliver the Content back to Customer and its users. All Content must comply with the Content Standards set forth in paragraph 4 below (the “Content Standards”). You are responsible for any Content submitted or contributed to the Service by You, including its legality, reliability, accuracy, and appropriateness. BSI is not responsible or liable for the content or accuracy of any Content posted by Customer, You or any other users. For purposes of this Policy, “Content” means all data, text, information, images, audio and video clips, sounds, musical works, works of authorship, links, and other content or materials that is created or originally provided by You or any other user of the Service and submitted, uploaded, posted or displayed on or via the Service. Content shall not include any content prepared or created by or for BSI or that is originally provided to You or Customer by BSI.
- Reservation of Rights; License to Use. By providing Content to BSI via the Service, You represent and warrant that You or Customer own or control all rights in and to the Content uploaded or posted on or through the Service. Except for Content, as between the parties, BSI and its licensors own and retain all right, title and interest in and to all other content created, submitted, uploaded, posted or displayed by, to, on or through the Service. BSI does not claim ownership of any Content posted on or uploaded to the Service by You, Customer or any other user of the Service. Instead, and only as necessary for BSI to provide the Service, You and Customer hereby grant to BSI a worldwide, assignable, sublicensable, royalty-free, irrevocable, perpetual license to display, perform, reproduce, distribute, transmit, create Derivatives of, provide user access to, and otherwise use Content and any Derivatives. For purposes of the Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- You agree not to upload any Content to the Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries), including, but not limited to, copyright and trademark laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Service, or (iv) otherwise interferes with the proper working of the Service.
- Content Standards. Content must not (i) contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with the Agreement, (v) be likely to deceive any person, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person, (viii) impersonate any person, or misrepresent Customer’s or any user’s identity or affiliation with any person or organization, (ix) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (x) give the impression that Content emanates from or is endorsed by BSI or any other person or entity. The foregoing restrictions are collectively referred to as the “Content Standards.”
- Violations of this Policy may, at BSI’s sole discretion, result in the suspension or termination of Your and/or Customer’s access to the Service and/or immediate removal of Content. If Content uploaded by You violates this Policy, You and/or Customer will bear legal responsibility for that Content. By uploading Content to the Service, You and Customer agree that BSI is not responsible for Content uploaded.
- Changes and Updates to This Policy. BSI reserves the right, in its sole discretion, to change the terms and conditions contained in this Policy from time to time. Unless BSI makes a change for legal or administrative reasons, BSI will provide reasonable advance notice before the updated terms to this Policy become effective (“Updated Policy Terms”). All Updated Policy Terms will be posted to the Service, and will be effective as of the time of posting, or such later date as may be specified in the Updated Policy Terms.
Effective August 21st 2023 to August 30th 2023
DownloadTable of Contents
QuickHelp Content Submission Policy
- The Service contains interactive features that allow users to post, upload, submit, publish, display, or transmit content or other materials on or through the Service and that allow BSI to deliver the Content back to Customer and its users. All Content must comply with the Content Standards set forth in paragraph 4 below (the “Content Standards”). You are responsible for any Content submitted or contributed to the Service by You, including its legality, reliability, accuracy, and appropriateness. BSI is not responsible or liable for the content or accuracy of any Content posted by Customer, You or any other users. For purposes of this Policy, “Content” means all data, text, information, images, audio and video clips, sounds, musical works, works of authorship, links, and other content or materials that is created or originally provided by You or any other user of the Service and submitted, uploaded, posted or displayed on or via the Service. Content shall not include any content prepared or created by or for BSI or that is originally provided to You or Customer by BSI.
- Reservation of Rights; License to Use. By providing Content to BSI via the Service, You represent and warrant that You or Customer own or control all rights in and to the Content uploaded or posted on or through the Service. Except for Content, as between the parties, BSI and its licensors own and retain all right, title and interest in and to all other content created, submitted, uploaded, posted or displayed by, to, on or through the Service. BSI does not claim ownership of any Content posted on or uploaded to the Service by You, Customer or any other user of the Service. Instead, and only as necessary for BSI to provide the Service, You and Customer hereby grant to BSI a worldwide, assignable, sublicensable, royalty-free, irrevocable, perpetual license to display, perform, reproduce, distribute, transmit, create Derivatives of, provide user access to, and otherwise use Content and any Derivatives. For purposes of the Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- You agree not to upload any Content to the Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries), including, but not limited to, copyright and trademark laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Service, or (iv) otherwise interferes with the proper working of the Service.
- Content Standards. Content must not (i) contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with the Agreement, (v) be likely to deceive any person, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person, (viii) impersonate any person, or misrepresent Customer’s or any user’s identity or affiliation with any person or organization, (ix) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (x) give the impression that Content emanates from or is endorsed by BSI or any other person or entity. The foregoing restrictions are collectively referred to as the “Content Standards.”
- Violations of this Policy may, at BSI’s sole discretion, result in the suspension or termination of Your and/or Customer’s access to the Service and/or immediate removal of Content. If Content uploaded by You violates this Policy, You and/or Customer will bear legal responsibility for that Content. By uploading Content to the Service, You and Customer agree that BSI is not responsible for Content uploaded.
- Changes and Updates to This Policy. BSI reserves the right, in its sole discretion, to change the terms and conditions contained in this Policy from time to time. Unless BSI makes a change for legal or administrative reasons, BSI will provide reasonable advance notice before the updated terms to this Policy become effective (“Updated Policy Terms”). All Updated Policy Terms will be posted to the Service, and will be effective as of the time of posting, or such later date as may be specified in the Updated Policy Terms.
Effective August 21st 2023 to August 21st 2023
DownloadTable of Contents
QuickHelp Content Submission Policy
- The Service contains interactive features that allow users to post, upload, submit, publish, display, or transmit content or other materials on or through the Service and that allow BSI to deliver the Content back to Customer and its users. All Content must comply with the Content Standards set forth in paragraph 4 below (the “Content Standards”). You are responsible for any Content submitted or contributed to the Service by You, including its legality, reliability, accuracy, and appropriateness. BSI is not responsible or liable for the content or accuracy of any Content posted by Customer, You or any other users. For purposes of this Policy, “Content” means all data, text, information, images, audio and video clips, sounds, musical works, works of authorship, links, and other content or materials that is created or originally provided by You or any other user of the Service and submitted, uploaded, posted or displayed on or via the Service. Content shall not include any content prepared or created by or for BSI or that is originally provided to You or Customer by BSI.
- Reservation of Rights; License to Use. By providing Content to BSI via the Service, You represent and warrant that You or Customer own or control all rights in and to the Content uploaded or posted on or through the Service. Except for Content, as between the parties, BSI and its licensors own and retain all right, title and interest in and to all other content created, submitted, uploaded, posted or displayed by, to, on or through the Service. BSI does not claim ownership of any Content posted on or uploaded to the Service by You, Customer or any other user of the Service. Instead, and only as necessary for BSI to provide the Service, You and Customer hereby grant to BSI a worldwide, assignable, sublicensable, royalty-free, irrevocable, perpetual license to display, perform, reproduce, distribute, transmit, create Derivatives of, provide user access to, and otherwise use Content and any Derivatives. For purposes of the Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- You agree not to upload any Content to the Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries), including, but not limited to, copyright and trademark laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Service, or (iv) otherwise interferes with the proper working of the Service.
- Content Standards. Content must not (i) contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with the Agreement, (v) be likely to deceive any person, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person, (viii) impersonate any person, or misrepresent Customer’s or any user’s identity or affiliation with any person or organization, (ix) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (x) give the impression that Content emanates from or is endorsed by BSI or any other person or entity. The foregoing restrictions are collectively referred to as the “Content Standards.”
- Violations of this Policy may, at BSI’s sole discretion, result in the suspension or termination of Your and/or Customer’s access to the Service and/or immediate removal of Content. If Content uploaded by You violates this Policy, You and/or Customer will bear legal responsibility for that Content. By uploading Content to the Service, You and Customer agree that BSI is not responsible for Content uploaded.
- Changes and Updates to This Policy. BSI reserves the right, in its sole discretion, to change the terms and conditions contained in this Policy from time to time. Unless BSI makes a change for legal or administrative reasons, BSI will provide reasonable advance notice before the updated terms to this Policy become effective (“Updated Policy Terms”). All Updated Policy Terms will be posted to the Service, and will be effective as of the time of posting, or such later date as may be specified in the Updated Policy Terms.
Threat Defense Services Addendum
Effective August 30th 2023
DownloadTable of Contents
THREAT DEFENSE SERVICES ADDENDUM
- Capitalized terms used but not defined in this Addendum have the meanings given in the Agreement.
- “Third Party Marks” shall mean any of the following that are owned by a person or entity other than BrainStorm or Customer (a) trademarks, service marks, trade dress, trade names, and other indicia of source or origin, and (b) internet domain names, social media accounts, and usernames (including “handles”).
- “Threat Defense Service” shall mean those phishing simulation services, including, but not limited to, content, campaigns, and assessments, identified in an Order Form as being included in Customer’s purchase and that are provided by BrainStorm to Customer via the Cloud Service.
- THE THREAT DEFENSE SERVICE
- Provision of the Threat Defense Service. Subject to the terms and conditions of the Agreement, this Addendum and the applicable Order Form, and upon Customer’s payment of the applicable fees set forth in Section 2.(b). below, BrainStorm shall make the Threat Defense Service available to Customer via the Internet during the Term. Customer agrees that its purchase of a subscription to the Threat Defense Service is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features
- Fees and Payment. In consideration of BrainStorm’s performance of the Threat Defense Service, Customer agrees to pay BrainStorm the Fees described in the applicable Order Form (the “Threat Defense Service Fees”). Except as otherwise specified in an Order Form, the fees are based on the type of license, the applications included in the Threat Defense Service, and/or the number of subscriptions purchased and not on actual usage, and payment obligations are non-cancelable and fees paid for the Cloud Service are non-refundable.
- Limitation of BrainStorm Content. Customer’s rights under this Addendum to Threat Defense Service entitles Customer to access only the content expressly listed in the Order Form. The All content and data associated with the Threat Defense Service, including the remedial training content, is hosted and accessed via the Cloud Service. Customer recognizes that, due to technical, BrainStorm cannot currently partition off and block Customer from accessing the BrainStorm Content generally available in the Cloud Service beyond the content associated with the Threat Defense Service. Therefore, Customer agrees that should Customer or its Users access any BrainStorm Content not expressly authorized in the Order Form, then BrainStorm shall have the right to charge Customer the applicable Fees (at the then current rate) for access to the Cloud Service for the remainder of the Term.
- Services Support. Support is limited to the points of contact agreed to by the parties and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk support@quickhelp.com. Except as provided herein and in Section 2. of this Addendum, BrainStorm shall have no other maintenance or support obligations to Customer.
- Updates to the Threat Defense Service. BrainStorm will support, maintain, upgrade, and update the Threat Defense Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Addendum and the Agreement.
- PROPRIETARY RIGHTS, RESPONSIBILITIES, & SUGGESTIONS
- Reservation of Rights. As between the parties, the Threat Defense Service (including without limitation, any updates, upgrades modifications, customizations, and improvements thereto) and all intellectual property rights therein, are and will remain the sole property of BrainStorm, and no rights are granted to Customer with respect to the Threat Defense Service, or the intellectual property rights therein, other than the limited rights and licenses specified in this Addendum or the Agreement. Customer will not access or use the Threat Defense Service except as expressly permitted by this Addendum or the Agreement.
- Customer Responsibilities. In addition to the Customer Responsibilities set forth elsewhere in this Threat Defense Service Addendum, Customer shall (i) be responsible for Customer’s and its Users’ compliance with this Addendum and the Agreement and all applicable laws and regulations, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Threat Defense Service, and notify BrainStorm promptly of any such known or suspected unauthorized access or use, and (iii) be responsible for Customer’s and Users’ use of the Threat Defense Service, including, without limitation, Customer shall solely be responsible for any use of the Threat Defense Service that is in violation of applicable laws and regulations.
- Customer shall not, and shall not permit any third party to (i) access or use the Threat Defense Service except, except for its Users, and as permitted herein or in an Order Form, (ii) create derivative works based on the Threat Defense Service, (iii) copy, frame, mirror or otherwise distribute any part or content of the Threat Defense Service, (iv) reverse engineer the Threat Defense Service, or (v) access the Threat Defense Service in order to (a) build a competitive product or service, or (b) copy any content, features, functions or graphics of the Threat Defense Service.
- Suggestions. BrainStorm shall have a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Threat Defense Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Threat Defense Service.
- THIRD PARTY MARKS.
- Customer is not obligated, but may choose, to utilize certain Third Party Marks in the Threat Defense Service. Customer acknowledges that (a) all such Third Party Marks are registered or unregistered trademarks of their respective owners, (b) BrainStorm does not have an express license and neither BrainStorm nor Customer has been expressly authorized by the owners of the Third Party Marks to use the Third Party Marks in the Threat Defense Service, and (c) use of the Third Party Marks does not imply any affiliation with or sponsorship or endorsement by the owners of the Third Party Marks. Any references to Third Party Marks in the Threat Defense Service are provided for informational purposes only. These references do not represent the opinions of BrainStorm. Such references are neither an endorsement or approval by BrainStorm.
- NOTWITHSTANDING ANYTHING IN THE AGREEMENT OR THIS ADDENDUM TO THE CONTRARY, BrainStorm DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, CONCERNING THE THIRD PARTY MARKS, INCLUDING ALL IMPLIED WARRANTIES THAT THE THIRD PARTY MARKS AND/OR THE USE OF THE THIRD PARTY MARKS WILL NOT INFRINGE OR OTHERWISE VIOLATE THE RIGHTS OF ANY PERSON OR APPLICABLE LAWS.
- NOTWITHSTANDING ANYTHING IN THE AGREEMENT OR THIS ADDENDUM TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW, BRAINSTORM WILL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ANY OTHER PERSON FOR OR ON ACCOUNT OF INJURY, LOSS, OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THE THIRD PARTY MARKS AND/OR THEIR USE, INCLUDING, WITHOUT LIMITATION, ANY INJURY TO OR LOSS OF GOODWILL, REPUTATION, BUSINESS, PRODUCTION, REVENUES, PROFITS, ANTICIPATED PROFITS, CONTRACTS, OR OPPORTUNITIES, OR FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF APPLICABLE LAW, OR OTHERWISE, REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR THE PARTY AGAINST WHOM SUCH LIABILITY IS CLAIMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Notwithstanding anything in the Agreement (including, without limitation, Section 7(a)) and this Addendum to the contrary, Customer shall indemnify, defend, and hold harmless BrainStorm from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising out of or in connection with Customer’s or its designee’s use of the Third Party Marks, including, without limitation, any infringement, dilution, violation of any intellectual property rights, or other violation of applicable law.
- CUSTOMER ACKNOWLEDGES THAT THIS SECTION 4 REPRESENTS THE NEGOTIATED ASSIGNMENT OF RISK BETWEEN THE PARTIES WITH REGARD TO THE THIRD PARTY MARKS AND BRAINSTORM WOULD NOT ENTER INTO THIS ADDENDUM WITHOUT IT.
- REPRESENTATIONS AND WARRANTIES
- Performance of the Threat Defense Services. BrainStorm warrants that it will perform the Threat Defense Services:
- In accordance with the terms and subject to the conditions set out in the applicable Order Form, this Addendum, and the Agreement.
- Using personnel of industry standard skill, experience, and qualifications.
- In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
- BrainStorm’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
- BrainStorm shall use commercially reasonable efforts to promptly cure any such breach; provided, that if BrainStorm cannot cure such breach within a reasonable time after Customer’s written notice of such breach, Customer may, at its option, terminate this Addendum by serving written notice of termination in accordance with the terms of the Agreement.
- In the event the Agreement is terminated pursuant to Section 2(d) above, BrainStorm shall within thirty (30) days after the effective date of termination, refund to Customer any fees paid by Customer as of the date of termination for the Threat Defense Services, less a deduction equal to the fees for BrainStorm’s performance of such Threat Defense Services up to and including the date of termination on a pro-rated basis.
- The foregoing remedy shall not be available unless Customer provides written notice of such breach within thirty (30) days after delivery or performance of such Threat Defense Services.
- NO WARRANTIES. IN ADDITION TO SECTION 3(f)(c) OF THE AGREEMENT AND SECTION 4(b) OF THIS ADDENDUM, BRAINSTORM EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO WHETHER (I) THE INFORMATION ACCESSIBLE OR PROVIDED VIA THE THREAT DEFENSE SERVICES IS ACCURATE, RELIABLE, COMPLETE, OR CURRENT, (II) USE OF THE THREAT DEFENSE SERVICES OR THE ASSOCAITED BRAINSTORM CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, (C) THE THREAT DEFENSE SERVICES AND ASSOCIATED BRAINSTORM CONTENT WILL BE AVAILABLE AT ANY PARTICULAR TIME, OR (D) THE THREAT DEFENSE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BRAINSTORM WILL BE LIABLE WITH RESPECT TO ANY DECISIONS MADE BY CUSTOMER OR ANY OTHER PERSON AS A RESULT OF RELIANCE ON THE THREAT DEFENSE SERVICES AND BRAINSTORM MATERIAL.
- Performance of the Threat Defense Services. BrainStorm warrants that it will perform the Threat Defense Services:
- TERM AND TERMINATION. The term of this Addendum will be coterminous with the Agreement. Unless otherwise terminated as provided in the Agreement or this Addendum, this Addendum commences on the Effective Date and continues until the expiration of the term specified in the applicable Order Form. Any termination of this Addendum shall not affect the Agreement or any other Addendum between the parties.
- INTELLECTUAL PROPERTY RIGHTS. The parties acknowledge and agree that this is a services arrangement only and that BrainStorm is not developing or preparing any deliverables that will be owned by Customer. Accordingly, the parties agree that, except as otherwise provided in the Agreement, BrainStorm and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Threat Defense Services and all results thereof, and any and all intellectual property rights in and to the foregoing.
- This Addendum is intended to be consistent with and supplementary to the Agreement. However, in the event of a direct conflict between language included in this Addendum and language included in the Agreement, the provisions of this Addendum will control solely with respect to the Threat Defense Service.
Effective August 30th 2023 to August 30th 2023
DownloadTable of Contents
Threat Defense Services Addendum
- Capitalized terms used but not defined in this Addendum have the meanings given in the Agreement.
- “Third Party Marks” shall mean any of the following that are owned by a person or entity other than BrainStorm or Customer (a) trademarks, service marks, trade dress, trade names, and other indicia of source or origin, and (b) internet domain names, social media accounts, and usernames (including “handles”).
- “Threat Defense Service” shall mean those phishing simulation services, including, but not limited to, content, campaigns, and assessments, identified in an Order Form as being included in Customer’s purchase and that are provided by BrainStorm to Customer via the Cloud Service.
- THE THREAT DEFENSE SERVICE
- Provision of the Threat Defense Service. Subject to the terms and conditions of the Agreement, this Addendum and the applicable Order Form, and upon Customer’s payment of the applicable fees set forth in Section 2.(b). below, BrainStorm shall make the Threat Defense Service available to Customer via the Internet during the Term. Customer agrees that its purchase of a subscription to the Threat Defense Service is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features
- Fees and Payment. In consideration of BrainStorm’s performance of the Threat Defense Service, Customer agrees to pay BrainStorm the Fees described in the applicable Order Form (the “Threat Defense Service Fees”). Except as otherwise specified in an Order Form, the fees are based on the type of license, the applications included in the Threat Defense Service, and/or the number of subscriptions purchased and not on actual usage, and payment obligations are non-cancelable and fees paid for the Cloud Service are non-refundable.
- Limitation of BrainStorm Content. Customer’s rights under this Addendum to Threat Defense Service entitles Customer to access only the content expressly listed in the Order Form. The All content and data associated with the Threat Defense Service, including the remedial training content, is hosted and accessed via the Cloud Service. Customer recognizes that, due to technical, BrainStorm cannot currently partition off and block Customer from accessing the BrainStorm Content generally available in the Cloud Service beyond the content associated with the Threat Defense Service. Therefore, Customer agrees that should Customer or its Users access any BrainStorm Content not expressly authorized in the Order Form, then BrainStorm shall have the right to charge Customer the applicable Fees (at the then current rate) for access to the Cloud Service for the remainder of the Term.
- Services Support. Support is limited to the points of contact agreed to by the parties and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk support@quickhelp.com. Except as provided herein and in Section 2. of this Addendum, BrainStorm shall have no other maintenance or support obligations to Customer.
- Updates to the Threat Defense Service. BrainStorm will support, maintain, upgrade, and update the Threat Defense Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Addendum and the Agreement.
- PROPRIETARY RIGHTS, RESPONSIBILITIES, & SUGGESTIONS
- Reservation of Rights. As between the parties, the Threat Defense Service (including without limitation, any updates, upgrades modifications, customizations, and improvements thereto) and all intellectual property rights therein, are and will remain the sole property of BrainStorm, and no rights are granted to Customer with respect to the Threat Defense Service, or the intellectual property rights therein, other than the limited rights and licenses specified in this Addendum or the Agreement. Customer will not access or use the Threat Defense Service except as expressly permitted by this Addendum or the Agreement.
- Customer Responsibilities. In addition to the Customer Responsibilities set forth elsewhere in this Threat Defense Service Addendum, Customer shall (i) be responsible for Customer’s and its Users’ compliance with this Addendum and the Agreement and all applicable laws and regulations, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Threat Defense Service, and notify BrainStorm promptly of any such known or suspected unauthorized access or use, and (iii) be responsible for Customer’s and Users’ use of the Threat Defense Service, including, without limitation, Customer shall solely be responsible for any use of the Threat Defense Service that is in violation of applicable laws and regulations.
- Customer shall not, and shall not permit any third party to (i) access or use the Threat Defense Service except, except for its Users, and as permitted herein or in an Order Form, (ii) create derivative works based on the Threat Defense Service, (iii) copy, frame, mirror or otherwise distribute any part or content of the Threat Defense Service, (iv) reverse engineer the Threat Defense Service, or (v) access the Threat Defense Service in order to (a) build a competitive product or service, or (b) copy any content, features, functions or graphics of the Threat Defense Service.
- Suggestions. BrainStorm shall have a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Threat Defense Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Threat Defense Service.
- THIRD PARTY MARKS.
- Customer is not obligated, but may choose, to utilize certain Third Party Marks in the Threat Defense Service. Customer acknowledges that (a) all such Third Party Marks are registered or unregistered trademarks of their respective owners, (b) BrainStorm does not have an express license and neither BrainStorm nor Customer has been expressly authorized by the owners of the Third Party Marks to use the Third Party Marks in the Threat Defense Service, and (c) use of the Third Party Marks does not imply any affiliation with or sponsorship or endorsement by the owners of the Third Party Marks. Any references to Third Party Marks in the Threat Defense Service are provided for informational purposes only. These references do not represent the opinions of BrainStorm. Such references are neither an endorsement or approval by BrainStorm.
- NOTWITHSTANDING ANYTHING IN THE AGREEMENT OR THIS ADDENDUM TO THE CONTRARY, BrainStorm DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, CONCERNING THE THIRD PARTY MARKS, INCLUDING ALL IMPLIED WARRANTIES THAT THE THIRD PARTY MARKS AND/OR THE USE OF THE THIRD PARTY MARKS WILL NOT INFRINGE OR OTHERWISE VIOLATE THE RIGHTS OF ANY PERSON OR APPLICABLE LAWS.
- NOTWITHSTANDING ANYTHING IN THE AGREEMENT OR THIS ADDENDUM TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW, BRAINSTORM WILL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ANY OTHER PERSON FOR OR ON ACCOUNT OF INJURY, LOSS, OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THE THIRD PARTY MARKS AND/OR THEIR USE, INCLUDING, WITHOUT LIMITATION, ANY INJURY TO OR LOSS OF GOODWILL, REPUTATION, BUSINESS, PRODUCTION, REVENUES, PROFITS, ANTICIPATED PROFITS, CONTRACTS, OR OPPORTUNITIES, OR FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF APPLICABLE LAW, OR OTHERWISE, REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR THE PARTY AGAINST WHOM SUCH LIABILITY IS CLAIMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Notwithstanding anything in the Agreement (including, without limitation, Section 7(a)) and this Addendum to the contrary, Customer shall indemnify, defend, and hold harmless BrainStorm from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising out of or in connection with Customer’s or its designee’s use of the Third Party Marks, including, without limitation, any infringement, dilution, violation of any intellectual property rights, or other violation of applicable law.
- CUSTOMER ACKNOWLEDGES THAT THIS SECTION 4 REPRESENTS THE NEGOTIATED ASSIGNMENT OF RISK BETWEEN THE PARTIES WITH REGARD TO THE THIRD PARTY MARKS AND BRAINSTORM WOULD NOT ENTER INTO THIS ADDENDUM WITHOUT IT.
- REPRESENTATIONS AND WARRANTIES
- Performance of the Threat Defense Services. BrainStorm warrants that it will perform the Threat Defense Services:
- In accordance with the terms and subject to the conditions set out in the applicable Order Form, this Addendum, and the Agreement.
- Using personnel of industry standard skill, experience, and qualifications.
- In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
- BrainStorm’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
- BrainStorm shall use commercially reasonable efforts to promptly cure any such breach; provided, that if BrainStorm cannot cure such breach within a reasonable time after Customer’s written notice of such breach, Customer may, at its option, terminate this Addendum by serving written notice of termination in accordance with the terms of the Agreement.
- In the event the Agreement is terminated pursuant to Section 2(d) above, BrainStorm shall within thirty (30) days after the effective date of termination, refund to Customer any fees paid by Customer as of the date of termination for the Threat Defense Services, less a deduction equal to the fees for BrainStorm’s performance of such Threat Defense Services up to and including the date of termination on a pro-rated basis.
- The foregoing remedy shall not be available unless Customer provides written notice of such breach within thirty (30) days after delivery or performance of such Threat Defense Services.
- NO WARRANTIES. IN ADDITION TO SECTION 3(f)(c) OF THE AGREEMENT AND SECTION 4(b) OF THIS ADDENDUM, BRAINSTORM EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO WHETHER (I) THE INFORMATION ACCESSIBLE OR PROVIDED VIA THE THREAT DEFENSE SERVICES IS ACCURATE, RELIABLE, COMPLETE, OR CURRENT, (II) USE OF THE THREAT DEFENSE SERVICES OR THE ASSOCAITED BRAINSTORM CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, (C) THE THREAT DEFENSE SERVICES AND ASSOCIATED BRAINSTORM CONTENT WILL BE AVAILABLE AT ANY PARTICULAR TIME, OR (D) THE THREAT DEFENSE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BRAINSTORM WILL BE LIABLE WITH RESPECT TO ANY DECISIONS MADE BY CUSTOMER OR ANY OTHER PERSON AS A RESULT OF RELIANCE ON THE THREAT DEFENSE SERVICES AND BRAINSTORM MATERIAL.
- Performance of the Threat Defense Services. BrainStorm warrants that it will perform the Threat Defense Services:
- TERM AND TERMINATION. The term of this Addendum will be coterminous with the Agreement. Unless otherwise terminated as provided in the Agreement or this Addendum, this Addendum commences on the Effective Date and continues until the expiration of the term specified in the applicable Order Form. Any termination of this Addendum shall not affect the Agreement or any other Addendum between the parties.
- INTELLECTUAL PROPERTY RIGHTS. The parties acknowledge and agree that this is a services arrangement only and that BrainStorm is not developing or preparing any deliverables that will be owned by Customer. Accordingly, the parties agree that, except as otherwise provided in the Agreement, BrainStorm and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Threat Defense Services and all results thereof, and any and all intellectual property rights in and to the foregoing.
- This Addendum is intended to be consistent with and supplementary to the Agreement. However, in the event of a direct conflict between language included in this Addendum and language included in the Agreement, the provisions of this Addendum will control solely with respect to the Threat Defense Service.
Effective August 21st 2023 to August 30th 2023
DownloadTable of Contents
Threat Defense Services Addendum
- Capitalized terms used but not defined in this Addendum have the meanings given in the Agreement.
- “Third Party Marks” shall mean any of the following that are owned by a person or entity other than BrainStorm or Customer (a) trademarks, service marks, trade dress, trade names, and other indicia of source or origin, and (b) internet domain names, social media accounts, and usernames (including “handles”).
- “Threat Defense Service” shall mean those phishing simulation services, including, but not limited to, content, campaigns, and assessments, identified in an Order Form as being included in Customer’s purchase and that are provided by BrainStorm to Customer via the Cloud Service.
- THE THREAT DEFENSE SERVICE
- Provision of the Threat Defense Service. Subject to the terms and conditions of the Agreement, this Addendum and the applicable Order Form, and upon Customer’s payment of the applicable fees set forth in Section 2.(b). below, BrainStorm shall make the Threat Defense Service available to Customer via the Internet during the Term. Customer agrees that its purchase of a subscription to the Threat Defense Service is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features
- Fees and Payment. In consideration of BrainStorm’s performance of the Threat Defense Service, Customer agrees to pay BrainStorm the Fees described in the applicable Order Form (the “Threat Defense Service Fees”). Except as otherwise specified in an Order Form, the fees are based on the type of license, the applications included in the Threat Defense Service, and/or the number of subscriptions purchased and not on actual usage, and payment obligations are non-cancelable and fees paid for the Cloud Service are non-refundable.
- Limitation of BrainStorm Content. Customer’s rights under this Addendum to Threat Defense Service entitles Customer to access only the content expressly listed in the Order Form. The All content and data associated with the Threat Defense Service, including the remedial training content, is hosted and accessed via the Cloud Service. Customer recognizes that, due to technical, BrainStorm cannot currently partition off and block Customer from accessing the BrainStorm Content generally available in the Cloud Service beyond the content associated with the Threat Defense Service. Therefore, Customer agrees that should Customer or its Users access any BrainStorm Content not expressly authorized in the Order Form, then BrainStorm shall have the right to charge Customer the applicable Fees (at the then current rate) for access to the Cloud Service for the remainder of the Term.
- Services Support. Support is limited to the points of contact agreed to by the parties and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk support@quickhelp.com. Except as provided herein and in Section 2. of this Addendum, BrainStorm shall have no other maintenance or support obligations to Customer.
- Updates to the Threat Defense Service. BrainStorm will support, maintain, upgrade, and update the Threat Defense Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Addendum and the Agreement.
- PROPRIETARY RIGHTS, RESPONSIBILITIES, & SUGGESTIONS
- Reservation of Rights. As between the parties, the Threat Defense Service (including without limitation, any updates, upgrades modifications, customizations, and improvements thereto) and all intellectual property rights therein, are and will remain the sole property of BrainStorm, and no rights are granted to Customer with respect to the Threat Defense Service, or the intellectual property rights therein, other than the limited rights and licenses specified in this Addendum or the Agreement. Customer will not access or use the Threat Defense Service except as expressly permitted by this Addendum or the Agreement.
- Customer Responsibilities. In addition to the Customer Responsibilities set forth elsewhere in this Threat Defense Service Addendum, Customer shall (i) be responsible for Customer’s and its Users’ compliance with this Addendum and the Agreement and all applicable laws and regulations, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Threat Defense Service, and notify BrainStorm promptly of any such known or suspected unauthorized access or use, and (iii) be responsible for Customer’s and Users’ use of the Threat Defense Service, including, without limitation, Customer shall solely be responsible for any use of the Threat Defense Service that is in violation of applicable laws and regulations.
- Customer shall not, and shall not permit any third party to (i) access or use the Threat Defense Service except, except for its Users, and as permitted herein or in an Order Form, (ii) create derivative works based on the Threat Defense Service, (iii) copy, frame, mirror or otherwise distribute any part or content of the Threat Defense Service, (iv) reverse engineer the Threat Defense Service, or (v) access the Threat Defense Service in order to (a) build a competitive product or service, or (b) copy any content, features, functions or graphics of the Threat Defense Service.
- Suggestions. BrainStorm shall have a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Threat Defense Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Threat Defense Service.
- THIRD PARTY MARKS.
- Customer is not obligated, but may choose, to utilize certain Third Party Marks in the Threat Defense Service. Customer acknowledges that (a) all such Third Party Marks are registered or unregistered trademarks of their respective owners, (b) BrainStorm does not have an express license and neither BrainStorm nor Customer has been expressly authorized by the owners of the Third Party Marks to use the Third Party Marks in the Threat Defense Service, and (c) use of the Third Party Marks does not imply any affiliation with or sponsorship or endorsement by the owners of the Third Party Marks. Any references to Third Party Marks in the Threat Defense Service are provided for informational purposes only. These references do not represent the opinions of BrainStorm. Such references are neither an endorsement or approval by BrainStorm.
- NOTWITHSTANDING ANYTHING IN THE AGREEMENT OR THIS ADDENDUM TO THE CONTRARY, BrainStorm DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, CONCERNING THE THIRD PARTY MARKS, INCLUDING ALL IMPLIED WARRANTIES THAT THE THIRD PARTY MARKS AND/OR THE USE OF THE THIRD PARTY MARKS WILL NOT INFRINGE OR OTHERWISE VIOLATE THE RIGHTS OF ANY PERSON OR APPLICABLE LAWS.
- NOTWITHSTANDING ANYTHING IN THE AGREEMENT OR THIS ADDENDUM TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW, BRAINSTORM WILL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ANY OTHER PERSON FOR OR ON ACCOUNT OF INJURY, LOSS, OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THE THIRD PARTY MARKS AND/OR THEIR USE, INCLUDING, WITHOUT LIMITATION, ANY INJURY TO OR LOSS OF GOODWILL, REPUTATION, BUSINESS, PRODUCTION, REVENUES, PROFITS, ANTICIPATED PROFITS, CONTRACTS, OR OPPORTUNITIES, OR FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF APPLICABLE LAW, OR OTHERWISE, REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR THE PARTY AGAINST WHOM SUCH LIABILITY IS CLAIMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Notwithstanding anything in the Agreement (including, without limitation, Section 7(a)) and this Addendum to the contrary, Customer shall indemnify, defend, and hold harmless BrainStorm from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising out of or in connection with Customer’s or its designee’s use of the Third Party Marks, including, without limitation, any infringement, dilution, violation of any intellectual property rights, or other violation of applicable law.
- CUSTOMER ACKNOWLEDGES THAT THIS SECTION 4 REPRESENTS THE NEGOTIATED ASSIGNMENT OF RISK BETWEEN THE PARTIES WITH REGARD TO THE THIRD PARTY MARKS AND BRAINSTORM WOULD NOT ENTER INTO THIS ADDENDUM WITHOUT IT.
- REPRESENTATIONS AND WARRANTIES
- Performance of the Threat Defense Services. BrainStorm warrants that it will perform the Threat Defense Services:
- In accordance with the terms and subject to the conditions set out in the applicable Order Form, this Addendum, and the Agreement.
- Using personnel of industry standard skill, experience, and qualifications.
- In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
- BrainStorm’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
- BrainStorm shall use commercially reasonable efforts to promptly cure any such breach; provided, that if BrainStorm cannot cure such breach within a reasonable time after Customer’s written notice of such breach, Customer may, at its option, terminate this Addendum by serving written notice of termination in accordance with the terms of the Agreement.
- In the event the Agreement is terminated pursuant to Section 2(d) above, BrainStorm shall within thirty (30) days after the effective date of termination, refund to Customer any fees paid by Customer as of the date of termination for the Threat Defense Services, less a deduction equal to the fees for BrainStorm’s performance of such Threat Defense Services up to and including the date of termination on a pro-rated basis.
- The foregoing remedy shall not be available unless Customer provides written notice of such breach within thirty (30) days after delivery or performance of such Threat Defense Services.
- NO WARRANTIES. IN ADDITION TO SECTION 3(f)(c) OF THE AGREEMENT AND SECTION 4(b) OF THIS ADDENDUM, BRAINSTORM EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO WHETHER (I) THE INFORMATION ACCESSIBLE OR PROVIDED VIA THE THREAT DEFENSE SERVICES IS ACCURATE, RELIABLE, COMPLETE, OR CURRENT, (II) USE OF THE THREAT DEFENSE SERVICES OR THE ASSOCAITED BRAINSTORM CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, (C) THE THREAT DEFENSE SERVICES AND ASSOCIATED BRAINSTORM CONTENT WILL BE AVAILABLE AT ANY PARTICULAR TIME, OR (D) THE THREAT DEFENSE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BRAINSTORM WILL BE LIABLE WITH RESPECT TO ANY DECISIONS MADE BY CUSTOMER OR ANY OTHER PERSON AS A RESULT OF RELIANCE ON THE THREAT DEFENSE SERVICES AND BRAINSTORM MATERIAL.
- Performance of the Threat Defense Services. BrainStorm warrants that it will perform the Threat Defense Services:
- TERM AND TERMINATION. The term of this Addendum will be coterminous with the Agreement. Unless otherwise terminated as provided in the Agreement or this Addendum, this Addendum commences on the Effective Date and continues until the expiration of the term specified in the applicable Order Form. Any termination of this Addendum shall not affect the Agreement or any other Addendum between the parties.
- INTELLECTUAL PROPERTY RIGHTS. The parties acknowledge and agree that this is a services arrangement only and that BrainStorm is not developing or preparing any deliverables that will be owned by Customer. Accordingly, the parties agree that, except as otherwise provided in the Agreement, BrainStorm and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Threat Defense Services and all results thereof, and any and all intellectual property rights in and to the foregoing.
- This Addendum is intended to be consistent with and supplementary to the Agreement. However, in the event of a direct conflict between language included in this Addendum and language included in the Agreement, the provisions of this Addendum will control solely with respect to the Threat Defense Service.
Effective August 21st 2023 to August 21st 2023
DownloadTable of Contents
Threat Defense Services Addendum
- Capitalized terms used but not defined in this Addendum have the meanings given in the Agreement.
- “Third Party Marks” shall mean any of the following that are owned by a person or entity other than BrainStorm or Customer (a) trademarks, service marks, trade dress, trade names, and other indicia of source or origin, and (b) internet domain names, social media accounts, and usernames (including “handles”).
- “Threat Defense Service” shall mean those phishing simulation services, including, but not limited to, content, campaigns, and assessments, identified in an Order Form as being included in Customer’s purchase and that are provided by BrainStorm to Customer via the Cloud Service.
- THE THREAT DEFENSE SERVICE
- Provision of the Threat Defense Service. Subject to the terms and conditions of the Agreement, this Addendum and the applicable Order Form, and upon Customer’s payment of the applicable fees set forth in Section 2.(b). below, BrainStorm shall make the Threat Defense Service available to Customer via the Internet during the Term. Customer agrees that its purchase of a subscription to the Threat Defense Service is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features
- Fees and Payment. In consideration of BrainStorm’s performance of the Threat Defense Service, Customer agrees to pay BrainStorm the Fees described in the applicable Order Form (the “Threat Defense Service Fees”). Except as otherwise specified in an Order Form, the fees are based on the type of license, the applications included in the Threat Defense Service, and/or the number of subscriptions purchased and not on actual usage, and payment obligations are non-cancelable and fees paid for the Cloud Service are non-refundable.
- Limitation of BrainStorm Content. Customer’s rights under this Addendum to Threat Defense Service entitles Customer to access only the content expressly listed in the Order Form. The All content and data associated with the Threat Defense Service, including the remedial training content, is hosted and accessed via the Cloud Service. Customer recognizes that, due to technical, BrainStorm cannot currently partition off and block Customer from accessing the BrainStorm Content generally available in the Cloud Service beyond the content associated with the Threat Defense Service. Therefore, Customer agrees that should Customer or its Users access any BrainStorm Content not expressly authorized in the Order Form, then BrainStorm shall have the right to charge Customer the applicable Fees (at the then current rate) for access to the Cloud Service for the remainder of the Term.
- Services Support. Support is limited to the points of contact agreed to by the parties and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk support@quickhelp.com. Except as provided herein and in Section 2. of this Addendum, BrainStorm shall have no other maintenance or support obligations to Customer.
- Updates to the Threat Defense Service. BrainStorm will support, maintain, upgrade, and update the Threat Defense Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Addendum and the Agreement.
- PROPRIETARY RIGHTS, RESPONSIBILITIES, & SUGGESTIONS
- Reservation of Rights. As between the parties, the Threat Defense Service (including without limitation, any updates, upgrades modifications, customizations, and improvements thereto) and all intellectual property rights therein, are and will remain the sole property of BrainStorm, and no rights are granted to Customer with respect to the Threat Defense Service, or the intellectual property rights therein, other than the limited rights and licenses specified in this Addendum or the Agreement. Customer will not access or use the Threat Defense Service except as expressly permitted by this Addendum or the Agreement.
- Customer Responsibilities. In addition to the Customer Responsibilities set forth elsewhere in this Threat Defense Service Addendum, Customer shall (i) be responsible for Customer’s and its Users’ compliance with this Addendum and the Agreement and all applicable laws and regulations, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Threat Defense Service, and notify BrainStorm promptly of any such known or suspected unauthorized access or use, and (iii) be responsible for Customer’s and Users’ use of the Threat Defense Service, including, without limitation, Customer shall solely be responsible for any use of the Threat Defense Service that is in violation of applicable laws and regulations.
- Customer shall not, and shall not permit any third party to (i) access or use the Threat Defense Service except, except for its Users, and as permitted herein or in an Order Form, (ii) create derivative works based on the Threat Defense Service, (iii) copy, frame, mirror or otherwise distribute any part or content of the Threat Defense Service, (iv) reverse engineer the Threat Defense Service, or (v) access the Threat Defense Service in order to (a) build a competitive product or service, or (b) copy any content, features, functions or graphics of the Threat Defense Service.
- Suggestions. BrainStorm shall have a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Threat Defense Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Threat Defense Service.
- THIRD PARTY MARKS.
- Customer is not obligated, but may choose, to utilize certain Third Party Marks in the Threat Defense Service. Customer acknowledges that (a) all such Third Party Marks are registered or unregistered trademarks of their respective owners, (b) BrainStorm does not have an express license and neither BrainStorm nor Customer has been expressly authorized by the owners of the Third Party Marks to use the Third Party Marks in the Threat Defense Service, and (c) use of the Third Party Marks does not imply any affiliation with or sponsorship or endorsement by the owners of the Third Party Marks. Any references to Third Party Marks in the Threat Defense Service are provided for informational purposes only. These references do not represent the opinions of BrainStorm. Such references are neither an endorsement or approval by BrainStorm.
- NOTWITHSTANDING ANYTHING IN THE AGREEMENT OR THIS ADDENDUM TO THE CONTRARY, BrainStorm DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, CONCERNING THE THIRD PARTY MARKS, INCLUDING ALL IMPLIED WARRANTIES THAT THE THIRD PARTY MARKS AND/OR THE USE OF THE THIRD PARTY MARKS WILL NOT INFRINGE OR OTHERWISE VIOLATE THE RIGHTS OF ANY PERSON OR APPLICABLE LAWS.
- NOTWITHSTANDING ANYTHING IN THE AGREEMENT OR THIS ADDENDUM TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW, BRAINSTORM WILL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ANY OTHER PERSON FOR OR ON ACCOUNT OF INJURY, LOSS, OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THE THIRD PARTY MARKS AND/OR THEIR USE, INCLUDING, WITHOUT LIMITATION, ANY INJURY TO OR LOSS OF GOODWILL, REPUTATION, BUSINESS, PRODUCTION, REVENUES, PROFITS, ANTICIPATED PROFITS, CONTRACTS, OR OPPORTUNITIES, OR FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF APPLICABLE LAW, OR OTHERWISE, REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR THE PARTY AGAINST WHOM SUCH LIABILITY IS CLAIMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Notwithstanding anything in the Agreement (including, without limitation, Section 7(a)) and this Addendum to the contrary, Customer shall indemnify, defend, and hold harmless BrainStorm from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising out of or in connection with Customer’s or its designee’s use of the Third Party Marks, including, without limitation, any infringement, dilution, violation of any intellectual property rights, or other violation of applicable law.
- CUSTOMER ACKNOWLEDGES THAT THIS SECTION 4 REPRESENTS THE NEGOTIATED ASSIGNMENT OF RISK BETWEEN THE PARTIES WITH REGARD TO THE THIRD PARTY MARKS AND BRAINSTORM WOULD NOT ENTER INTO THIS ADDENDUM WITHOUT IT.
- REPRESENTATIONS AND WARRANTIES
- Performance of the Threat Defense Services. BrainStorm warrants that it will perform the Threat Defense Services:
- In accordance with the terms and subject to the conditions set out in the applicable Order Form, this Addendum, and the Agreement.
- Using personnel of industry standard skill, experience, and qualifications.
- In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
- BrainStorm’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
- BrainStorm shall use commercially reasonable efforts to promptly cure any such breach; provided, that if BrainStorm cannot cure such breach within a reasonable time after Customer’s written notice of such breach, Customer may, at its option, terminate this Addendum by serving written notice of termination in accordance with the terms of the Agreement.
- In the event the Agreement is terminated pursuant to Section 2(d) above, BrainStorm shall within thirty (30) days after the effective date of termination, refund to Customer any fees paid by Customer as of the date of termination for the Threat Defense Services, less a deduction equal to the fees for BrainStorm’s performance of such Threat Defense Services up to and including the date of termination on a pro-rated basis.
- The foregoing remedy shall not be available unless Customer provides written notice of such breach within thirty (30) days after delivery or performance of such Threat Defense Services.
- NO WARRANTIES. IN ADDITION TO SECTION 3(f)(c) OF THE AGREEMENT AND SECTION 4(b) OF THIS ADDENDUM, BRAINSTORM EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO WHETHER (I) THE INFORMATION ACCESSIBLE OR PROVIDED VIA THE THREAT DEFENSE SERVICES IS ACCURATE, RELIABLE, COMPLETE, OR CURRENT, (II) USE OF THE THREAT DEFENSE SERVICES OR THE ASSOCAITED BRAINSTORM CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, (C) THE THREAT DEFENSE SERVICES AND ASSOCIATED BRAINSTORM CONTENT WILL BE AVAILABLE AT ANY PARTICULAR TIME, OR (D) THE THREAT DEFENSE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BRAINSTORM WILL BE LIABLE WITH RESPECT TO ANY DECISIONS MADE BY CUSTOMER OR ANY OTHER PERSON AS A RESULT OF RELIANCE ON THE THREAT DEFENSE SERVICES AND BRAINSTORM MATERIAL.
- Performance of the Threat Defense Services. BrainStorm warrants that it will perform the Threat Defense Services:
- TERM AND TERMINATION. The term of this Addendum will be coterminous with the Agreement. Unless otherwise terminated as provided in the Agreement or this Addendum, this Addendum commences on the Effective Date and continues until the expiration of the term specified in the applicable Order Form. Any termination of this Addendum shall not affect the Agreement or any other Addendum between the parties.
- INTELLECTUAL PROPERTY RIGHTS. The parties acknowledge and agree that this is a services arrangement only and that BrainStorm is not developing or preparing any deliverables that will be owned by Customer. Accordingly, the parties agree that, except as otherwise provided in the Agreement, BrainStorm and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Threat Defense Services and all results thereof, and any and all intellectual property rights in and to the foregoing.
- This Addendum is intended to be consistent with and supplementary to the Agreement. However, in the event of a direct conflict between language included in this Addendum and language included in the Agreement, the provisions of this Addendum will control solely with respect to the Threat Defense Service.
Custom Event Video License Agreement
Effective August 30th 2023
DownloadTable of Contents
BRAINSTORM CUSTOM EVENT VIDEO LICENSE AGREEMENT
- DEFINITIONS
- "Customer Materials" means all materials and information, including footage, videos, audio, documents, data, know-how, ideas, methodologies, specifications, software, content, and technology, in any form or media, provided or made available to BrainStorm by or on behalf of Customer in connection with this Agreement, whether or not the same: (a) are owned by Customer, a third party or in the public domain; or (b) qualify for or are protected by any Intellectual Property Rights.
- "BrainStorm Content" means all footage, videos, audio, documents, data, know-how, ideas, methodologies, specifications, software, and technology, in any form or media, created, developed or otherwise acquired by BrainStorm, either in performance of its obligations under the SOW or outside the scope thereof. For the avoidance of doubt, BrainStorm Content includes all content included in the Licensed Videos but does not include any Customer Materials.
- "Intellectual Property Rights" means all or any of the following: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases; (d) trade secrets, know-how, and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.
- "Licensed Video[s]" means the BrainStorm audiovisual works, as listed on the Schedule 1, attached to the Order Form.
- “QuickHelp” means the proprietary Software as a Service platform owned and operated by BrainStorm, available at www.quickhelp.com, to which Customer has already purchased a subscription.
- Grant of Rights. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, and in support of Customer’s other agreements set forth herein, BrainStorm hereby grants to Customer during the Term the nonexclusive, non-transferable, and non-sublicensable, world-wide right and license to use and display the Licensed Videos in QuickHelp. Customer acknowledges and agrees that the rights and license granted to it under this Agreement do not include the right to modify, edit, translate, include in collective works, or create derivative works of the Licensed Videos in whole or in part. Customer shall use the Licensed Videos only as permitted under this Agreement and shall not reproduce, distribute, display, perform, or otherwise use or exploit any Licensed Video in any way, in whole or in part, except as expressly permitted by this Agreement.
- Fees. In full consideration of the grant of rights and license hereunder, Customer shall pay BrainStorm the license fee set forth in Schedule 1 (“License Fee”).
- CUSTOMER LICENSE TO BRAINSTORM CONTENT. BrainStorm is and will remain the sole and exclusive owner of all right, title, and interest in and to the BrainStorm Content contained in the Licensed Videos, including all Intellectual Property Rights therein. BrainStorm agrees to make the Licensed Videos available to Customer QuickHelp. Except as provided herein, Customer obtains no Intellectual Property Rights in or to the Licensed Videos, QuickHelp or BrainStorm Content.
- CUSTOMER MATERIALS. To the extent requested by Customer, Customer hereby authorizes BrainStorm to incorporate any or all of the Customer Materials in, and/or use or combine any or all of the Customer Materials as may be provided to BrainStorm from time to time with the Licensed Videos and Customer hereby grants to BrainStorm an irrevocable, royalty-free, fully paid-up, worldwide, perpetual, nonexclusive license to use, publish, reproduce, perform, display, distribute copies of, prepare derivative works based upon, make, have made, sell, offer to sell, import, and otherwise exploit such Customer Materials as a part of or in connection with this Agreement and the Licensed Videos provided to Customer, but only as necessary or appropriate for BrainStorm to produced and provide the Licensed Videos to Customer pursuant to this Agreement.
- OWNERSHIP OF IP. BrainStorm and Customer agree that the Licensed Videos and any other BrainStorm Content made developed under this SOW and Agreement are not “work made for hire” as defined in 17 U.S.C. § 101. Accordingly, except as otherwise provided herein, BrainStorm shall retain and exclusively own all right, title, and interest in and to the Licensed Videos and BrainStorm Content, including the Intellectual Property Rights therein. Except for the limited license in Section 2, Customer shall retain and exclusively own all right, title, and interest in and to the Customer Content, including the Intellectual Property Rights therein.
- CREDIT. Company shall ensure that the Licensed Videos retain all copyright and other intellectual property rights notices.
- Representations and Warranties; Indemnification; Limitation of Liability.
- Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement.
- EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 8.1, BRAINSTORM HEREBY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT, INCLUDING SPECIFICALLY ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BRAINSTORM MAKES NO REPRESENTATION OR WARRANTY THAT IT POSSESSES ANY RELEASES FOR OR CONCERNING ANY INDIVIDUAL, PRODUCT, GRAPHIC, PICTORIAL, ARCHITECTURAL, OR OTHER WORK OF AUTHORSHIP, TRADEMARK, TANGIBLE PROPERTY, OR OTHER MATTER DEPICTED IN THE LICENSED VIDEOS AND COMPANY IS SOLELY RESPONSIBLE FOR OBTAINING ALL LICENSES, CONSENTS, RELEASES, RIGHTS, WAIVERS, AND PERMISSIONS REQUIRED FOR THEIR USE.
- Customer shall indemnify, defend, and hold harmless BrainStorm and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with any third-party claim, suit, action, or proceeding relating to any actual or alleged breach by Customer of its representations, warranties, covenants, or other obligations hereunder, or resulting directly or indirectly from the Customer’s use of the Licensed Videos.
- BRAINSTORM WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION, LOSSES OF BUSINESS, REVENUE, OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER BRAINSTORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- BRAINSTORM’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED ONE TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO LICENSOR IN THE 12 MONTHS PRECEDING THE COMMENCEMENT OF THE EVENTS GIVING RISE TO THE CLAIM.
- MISCELLANEOUS.
- Brainstorm may terminate this Agreement on written notice to Customer at any time, with or without cause. On the expiration or termination of this Agreement, all rights licensed under this Agreement will immediately revert to BrainStorm and Customer shall cause to be inactivated and erased all electronic copies of the Licensed Videos in its control and return or, at Licensor’s written request, destroy, any tangible copies of the Licensed Videos.
- Customer agrees that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its terms and that BrainStorm is entitled to equitable relief, including injunctive relief or specific performance of the terms hereof, in addition to any other remedy to which it is entitled at law or in equity.
- No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party will operate or be construed as a waiver of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Customer shall not assign any of its rights, or delegate any of its obligations, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor's prior written consent. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- This Agreement, including and together with any related attachments, is the sole and entire agreement of the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each party. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement nor invalidate or render unenforceable such term or provision in any other jurisdiction.
- This relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Utah, United States of America, without regard to its conflict of laws provisions. Any legal suit, action, or proceeding arising out of or relating to this Agreement will be instituted exclusively in the federal courts of the United States of America or the courts of the State of Utah, in each case located in the City of Salt Lake and County of Salt Lake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding.
- This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Effective February 27th 2023 to August 30th 2023
DownloadTable of Contents
BRAINSTORM CUSTOM EVENT VIDEO LICENSE AGREEMENT
- DEFINITIONS
- "Customer Materials" means all materials and information, including footage, videos, audio, documents, data, know-how, ideas, methodologies, specifications, software, content, and technology, in any form or media, provided or made available to BrainStorm by or on behalf of Customer in connection with this Agreement, whether or not the same: (a) are owned by Customer, a third party or in the public domain; or (b) qualify for or are protected by any Intellectual Property Rights.
- "BrainStorm Content" means all footage, videos, audio, documents, data, know-how, ideas, methodologies, specifications, software, and technology, in any form or media, created, developed or otherwise acquired by BrainStorm, either in performance of its obligations under the SOW or outside the scope thereof. For the avoidance of doubt, BrainStorm Content includes all content included in the Licensed Videos but does not include any Customer Materials.
- "Intellectual Property Rights" means all or any of the following: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases; (d) trade secrets, know-how, and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.
- "Licensed Video[s]" means the BrainStorm audiovisual works, as listed on the Schedule 1, attached to the Order Form.
- “QuickHelp” means the proprietary Software as a Service platform owned and operated by BrainStorm, available at www.quickhelp.com, to which Customer has already purchased a subscription.
- Grant of Rights. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, and in support of Customer’s other agreements set forth herein, BrainStorm hereby grants to Customer during the Term the nonexclusive, non-transferable, and non-sublicensable, world-wide right and license to use and display the Licensed Videos in QuickHelp. Customer acknowledges and agrees that the rights and license granted to it under this Agreement do not include the right to modify, edit, translate, include in collective works, or create derivative works of the Licensed Videos in whole or in part. Customer shall use the Licensed Videos only as permitted under this Agreement and shall not reproduce, distribute, display, perform, or otherwise use or exploit any Licensed Video in any way, in whole or in part, except as expressly permitted by this Agreement.
- Fees. In full consideration of the grant of rights and license hereunder, Customer shall pay BrainStorm the license fee set forth in Schedule 1 (“License Fee”).
- CUSTOMER LICENSE TO BRAINSTORM CONTENT. BrainStorm is and will remain the sole and exclusive owner of all right, title, and interest in and to the BrainStorm Content contained in the Licensed Videos, including all Intellectual Property Rights therein. BrainStorm agrees to make the Licensed Videos available to Customer QuickHelp. Except as provided herein, Customer obtains no Intellectual Property Rights in or to the Licensed Videos, QuickHelp or BrainStorm Content.
- CUSTOMER MATERIALS. To the extent requested by Customer, Customer hereby authorizes BrainStorm to incorporate any or all of the Customer Materials in, and/or use or combine any or all of the Customer Materials as may be provided to BrainStorm from time to time with the Licensed Videos and Customer hereby grants to BrainStorm an irrevocable, royalty-free, fully paid-up, worldwide, perpetual, nonexclusive license to use, publish, reproduce, perform, display, distribute copies of, prepare derivative works based upon, make, have made, sell, offer to sell, import, and otherwise exploit such Customer Materials as a part of or in connection with this Agreement and the Licensed Videos provided to Customer, but only as necessary or appropriate for BrainStorm to produced and provide the Licensed Videos to Customer pursuant to this Agreement.
- OWNERSHIP OF IP. BrainStorm and Customer agree that the Licensed Videos and any other BrainStorm Content made developed under this SOW and Agreement are not “work made for hire” as defined in 17 U.S.C. § 101. Accordingly, except as otherwise provided herein, BrainStorm shall retain and exclusively own all right, title, and interest in and to the Licensed Videos and BrainStorm Content, including the Intellectual Property Rights therein. Except for the limited license in Section 2, Customer shall retain and exclusively own all right, title, and interest in and to the Customer Content, including the Intellectual Property Rights therein.
- CREDIT. Company shall ensure that the Licensed Videos retain all copyright and other intellectual property rights notices.
- Representations and Warranties; Indemnification; Limitation of Liability.
- Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement.
- EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 8.1, BRAINSTORM HEREBY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT, INCLUDING SPECIFICALLY ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BRAINSTORM MAKES NO REPRESENTATION OR WARRANTY THAT IT POSSESSES ANY RELEASES FOR OR CONCERNING ANY INDIVIDUAL, PRODUCT, GRAPHIC, PICTORIAL, ARCHITECTURAL, OR OTHER WORK OF AUTHORSHIP, TRADEMARK, TANGIBLE PROPERTY, OR OTHER MATTER DEPICTED IN THE LICENSED VIDEOS AND COMPANY IS SOLELY RESPONSIBLE FOR OBTAINING ALL LICENSES, CONSENTS, RELEASES, RIGHTS, WAIVERS, AND PERMISSIONS REQUIRED FOR THEIR USE.
- Customer shall indemnify, defend, and hold harmless BrainStorm and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with any third-party claim, suit, action, or proceeding relating to any actual or alleged breach by Customer of its representations, warranties, covenants, or other obligations hereunder, or resulting directly or indirectly from the Customer’s use of the Licensed Videos.
- BRAINSTORM WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION, LOSSES OF BUSINESS, REVENUE, OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER BRAINSTORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- BRAINSTORM’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED ONE TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO LICENSOR IN THE 12 MONTHS PRECEDING THE COMMENCEMENT OF THE EVENTS GIVING RISE TO THE CLAIM.
- MISCELLANEOUS.
- Brainstorm may terminate this Agreement on written notice to Customer at any time, with or without cause. On the expiration or termination of this Agreement, all rights licensed under this Agreement will immediately revert to BrainStorm and Customer shall cause to be inactivated and erased all electronic copies of the Licensed Videos in its control and return or, at Licensor’s written request, destroy, any tangible copies of the Licensed Videos.
- Customer agrees that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its terms and that BrainStorm is entitled to equitable relief, including injunctive relief or specific performance of the terms hereof, in addition to any other remedy to which it is entitled at law or in equity.
- No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party will operate or be construed as a waiver of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Customer shall not assign any of its rights, or delegate any of its obligations, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor's prior written consent. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- This Agreement, including and together with any related attachments, is the sole and entire agreement of the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each party. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement nor invalidate or render unenforceable such term or provision in any other jurisdiction.
- This relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Utah, United States of America, without regard to its conflict of laws provisions. Any legal suit, action, or proceeding arising out of or relating to this Agreement will be instituted exclusively in the federal courts of the United States of America or the courts of the State of Utah, in each case located in the City of Salt Lake and County of Salt Lake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding.
- This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Effective February 27th 2023 to February 27th 2023
DownloadTable of Contents
BRAINSTORM CUSTOM EVENT VIDEO LICENSE AGREEMENT
- DEFINITIONS
- "Customer Materials" means all materials and information, including footage, videos, audio, documents, data, know-how, ideas, methodologies, specifications, software, content, and technology, in any form or media, provided or made available to BrainStorm by or on behalf of Customer in connection with this Agreement, whether or not the same: (a) are owned by Customer, a third party or in the public domain; or (b) qualify for or are protected by any Intellectual Property Rights.
- "BrainStorm Content" means all footage, videos, audio, documents, data, know-how, ideas, methodologies, specifications, software, and technology, in any form or media, created, developed or otherwise acquired by BrainStorm, either in performance of its obligations under the SOW or outside the scope thereof. For the avoidance of doubt, BrainStorm Content includes all content included in the Licensed Videos but does not include any Customer Materials.
- "Intellectual Property Rights" means all or any of the following: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases; (d) trade secrets, know-how, and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.
- "Licensed Video[s]" means the BrainStorm audiovisual works, as listed on the Schedule 1, attached to the Order Form.
- “QuickHelp” means the proprietary Software as a Service platform owned and operated by BrainStorm, available at www.quickhelp.com, to which Customer has already purchased a subscription.
- Grant of Rights. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, and in support of Customer’s other agreements set forth herein, BrainStorm hereby grants to Customer during the Term the nonexclusive, non-transferable, and non-sublicensable, world-wide right and license to use and display the Licensed Videos in QuickHelp. Customer acknowledges and agrees that the rights and license granted to it under this Agreement do not include the right to modify, edit, translate, include in collective works, or create derivative works of the Licensed Videos in whole or in part. Customer shall use the Licensed Videos only as permitted under this Agreement and shall not reproduce, distribute, display, perform, or otherwise use or exploit any Licensed Video in any way, in whole or in part, except as expressly permitted by this Agreement.
- Fees. In full consideration of the grant of rights and license hereunder, Customer shall pay BrainStorm the license fee set forth in Schedule 1 (“License Fee”).
- CUSTOMER LICENSE TO BRAINSTORM CONTENT. BrainStorm is and will remain the sole and exclusive owner of all right, title, and interest in and to the BrainStorm Content contained in the Licensed Videos, including all Intellectual Property Rights therein. BrainStorm agrees to make the Licensed Videos available to Customer QuickHelp. Except as provided herein, Customer obtains no Intellectual Property Rights in or to the Licensed Videos, QuickHelp or BrainStorm Content.
- CUSTOMER MATERIALS. To the extent requested by Customer, Customer hereby authorizes BrainStorm to incorporate any or all of the Customer Materials in, and/or use or combine any or all of the Customer Materials as may be provided to BrainStorm from time to time with the Licensed Videos and Customer hereby grants to BrainStorm an irrevocable, royalty-free, fully paid-up, worldwide, perpetual, nonexclusive license to use, publish, reproduce, perform, display, distribute copies of, prepare derivative works based upon, make, have made, sell, offer to sell, import, and otherwise exploit such Customer Materials as a part of or in connection with this Agreement and the Licensed Videos provided to Customer, but only as necessary or appropriate for BrainStorm to produced and provide the Licensed Videos to Customer pursuant to this Agreement.
- OWNERSHIP OF IP. BrainStorm and Customer agree that the Licensed Videos and any other BrainStorm Content made developed under this SOW and Agreement are not “work made for hire” as defined in 17 U.S.C. § 101. Accordingly, except as otherwise provided herein, BrainStorm shall retain and exclusively own all right, title, and interest in and to the Licensed Videos and BrainStorm Content, including the Intellectual Property Rights therein. Except for the limited license in Section 2, Customer shall retain and exclusively own all right, title, and interest in and to the Customer Content, including the Intellectual Property Rights therein.
- CREDIT. Company shall ensure that the Licensed Videos retain all copyright and other intellectual property rights notices.
- Representations and Warranties; Indemnification; Limitation of Liability.
- Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement.
- EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 8.1, BRAINSTORM HEREBY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT, INCLUDING SPECIFICALLY ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BRAINSTORM MAKES NO REPRESENTATION OR WARRANTY THAT IT POSSESSES ANY RELEASES FOR OR CONCERNING ANY INDIVIDUAL, PRODUCT, GRAPHIC, PICTORIAL, ARCHITECTURAL, OR OTHER WORK OF AUTHORSHIP, TRADEMARK, TANGIBLE PROPERTY, OR OTHER MATTER DEPICTED IN THE LICENSED VIDEOS AND COMPANY IS SOLELY RESPONSIBLE FOR OBTAINING ALL LICENSES, CONSENTS, RELEASES, RIGHTS, WAIVERS, AND PERMISSIONS REQUIRED FOR THEIR USE.
- Customer shall indemnify, defend, and hold harmless BrainStorm and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with any third-party claim, suit, action, or proceeding relating to any actual or alleged breach by Customer of its representations, warranties, covenants, or other obligations hereunder, or resulting directly or indirectly from the Customer’s use of the Licensed Videos.
- BRAINSTORM WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION, LOSSES OF BUSINESS, REVENUE, OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER BRAINSTORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- BRAINSTORM’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED ONE TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO LICENSOR IN THE 12 MONTHS PRECEDING THE COMMENCEMENT OF THE EVENTS GIVING RISE TO THE CLAIM.
- MISCELLANEOUS.
- Brainstorm may terminate this Agreement on written notice to Customer at any time, with or without cause. On the expiration or termination of this Agreement, all rights licensed under this Agreement will immediately revert to BrainStorm and Customer shall cause to be inactivated and erased all electronic copies of the Licensed Videos in its control and return or, at Licensor’s written request, destroy, any tangible copies of the Licensed Videos.
- Customer agrees that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its terms and that BrainStorm is entitled to equitable relief, including injunctive relief or specific performance of the terms hereof, in addition to any other remedy to which it is entitled at law or in equity.
- No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party will operate or be construed as a waiver of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Customer shall not assign any of its rights, or delegate any of its obligations, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor's prior written consent. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- This Agreement, including and together with any related attachments, is the sole and entire agreement of the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each party. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement nor invalidate or render unenforceable such term or provision in any other jurisdiction.
- This relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Utah, United States of America, without regard to its conflict of laws provisions. Any legal suit, action, or proceeding arising out of or relating to this Agreement will be instituted exclusively in the federal courts of the United States of America or the courts of the State of Utah, in each case located in the City of Salt Lake and County of Salt Lake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding.
- This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Effective February 27th 2023 to February 27th 2023
DownloadTable of Contents
BRAINSTORM CUSTOM EVENT VIDEO LICENSE AGREEMENT
- DEFINITIONS
- "Customer Materials" means all materials and information, including footage, videos, audio, documents, data, know-how, ideas, methodologies, specifications, software, content, and technology, in any form or media, provided or made available to BrainStorm by or on behalf of Customer in connection with this Agreement, whether or not the same: (a) are owned by Customer, a third party or in the public domain; or (b) qualify for or are protected by any Intellectual Property Rights.
- "BrainStorm Content" means all footage, videos, audio, documents, data, know-how, ideas, methodologies, specifications, software, and technology, in any form or media, created, developed or otherwise acquired by BrainStorm, either in performance of its obligations under the SOW or outside the scope thereof. For the avoidance of doubt, BrainStorm Content includes all content included in the Licensed Videos but does not include any Customer Materials.
- "Intellectual Property Rights" means all or any of the following: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases; (d) trade secrets, know-how, and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.
- "Licensed Video[s]" means the BrainStorm audiovisual works, as listed on the Schedule 1, attached to the Order Form.
- “QuickHelp” means the proprietary Software as a Service platform owned and operated by BrainStorm, available at www.quickhelp.com, to which Customer has already purchased a subscription.
- Grant of Rights. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, and in support of Customer’s other agreements set forth herein, BrainStorm hereby grants to Customer during the Term the nonexclusive, non-transferable, and non-sublicensable, world-wide right and license to use and display the Licensed Videos in QuickHelp. Customer acknowledges and agrees that the rights and license granted to it under this Agreement do not include the right to modify, edit, translate, include in collective works, or create derivative works of the Licensed Videos in whole or in part. Customer shall use the Licensed Videos only as permitted under this Agreement and shall not reproduce, distribute, display, perform, or otherwise use or exploit any Licensed Video in any way, in whole or in part, except as expressly permitted by this Agreement.
- Fees. In full consideration of the grant of rights and license hereunder, Customer shall pay BrainStorm the license fee set forth in Schedule 1 (“License Fee”).
- CUSTOMER LICENSE TO BRAINSTORM CONTENT. BrainStorm is and will remain the sole and exclusive owner of all right, title, and interest in and to the BrainStorm Content contained in the Licensed Videos, including all Intellectual Property Rights therein. BrainStorm agrees to make the Licensed Videos available to Customer QuickHelp. Except as provided herein, Customer obtains no Intellectual Property Rights in or to the Licensed Videos, QuickHelp or BrainStorm Content.
- CUSTOMER MATERIALS. To the extent requested by Customer, Customer hereby authorizes BrainStorm to incorporate any or all of the Customer Materials in, and/or use or combine any or all of the Customer Materials as may be provided to BrainStorm from time to time with the Licensed Videos and Customer hereby grants to BrainStorm an irrevocable, royalty-free, fully paid-up, worldwide, perpetual, nonexclusive license to use, publish, reproduce, perform, display, distribute copies of, prepare derivative works based upon, make, have made, sell, offer to sell, import, and otherwise exploit such Customer Materials as a part of or in connection with this Agreement and the Licensed Videos provided to Customer, but only as necessary or appropriate for BrainStorm to produced and provide the Licensed Videos to Customer pursuant to this Agreement.
- OWNERSHIP OF IP. BrainStorm and Customer agree that the Licensed Videos and any other BrainStorm Content made developed under this SOW and Agreement are not “work made for hire” as defined in 17 U.S.C. § 101. Accordingly, except as otherwise provided herein, BrainStorm shall retain and exclusively own all right, title, and interest in and to the Licensed Videos and BrainStorm Content, including the Intellectual Property Rights therein. Except for the limited license in Section 2, Customer shall retain and exclusively own all right, title, and interest in and to the Customer Content, including the Intellectual Property Rights therein.
- CREDIT. Company shall ensure that the Licensed Videos retain all copyright and other intellectual property rights notices.
- Representations and Warranties; Indemnification; Limitation of Liability.
- Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement.
- EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 8.1, BRAINSTORM HEREBY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT, INCLUDING SPECIFICALLY ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BRAINSTORM MAKES NO REPRESENTATION OR WARRANTY THAT IT POSSESSES ANY RELEASES FOR OR CONCERNING ANY INDIVIDUAL, PRODUCT, GRAPHIC, PICTORIAL, ARCHITECTURAL, OR OTHER WORK OF AUTHORSHIP, TRADEMARK, TANGIBLE PROPERTY, OR OTHER MATTER DEPICTED IN THE LICENSED VIDEOS AND COMPANY IS SOLELY RESPONSIBLE FOR OBTAINING ALL LICENSES, CONSENTS, RELEASES, RIGHTS, WAIVERS, AND PERMISSIONS REQUIRED FOR THEIR USE.
- Customer shall indemnify, defend, and hold harmless BrainStorm and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with any third-party claim, suit, action, or proceeding relating to any actual or alleged breach by Customer of its representations, warranties, covenants, or other obligations hereunder, or resulting directly or indirectly from the Customer’s use of the Licensed Videos.
- BRAINSTORM WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION, LOSSES OF BUSINESS, REVENUE, OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER BRAINSTORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- BRAINSTORM’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED ONE TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO LICENSOR IN THE 12 MONTHS PRECEDING THE COMMENCEMENT OF THE EVENTS GIVING RISE TO THE CLAIM.
- MISCELLANEOUS.
- Brainstorm may terminate this Agreement on written notice to Customer at any time, with or without cause. On the expiration or termination of this Agreement, all rights licensed under this Agreement will immediately revert to BrainStorm and Customer shall cause to be inactivated and erased all electronic copies of the Licensed Videos in its control and return or, at Licensor’s written request, destroy, any tangible copies of the Licensed Videos.
- Customer agrees that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its terms and that BrainStorm is entitled to equitable relief, including injunctive relief or specific performance of the terms hereof, in addition to any other remedy to which it is entitled at law or in equity.
- No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party will operate or be construed as a waiver of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Customer shall not assign any of its rights, or delegate any of its obligations, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor's prior written consent. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- This Agreement, including and together with any related attachments, is the sole and entire agreement of the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each party. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement nor invalidate or render unenforceable such term or provision in any other jurisdiction.
- This relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Utah, United States of America, without regard to its conflict of laws provisions. Any legal suit, action, or proceeding arising out of or relating to this Agreement will be instituted exclusively in the federal courts of the United States of America or the courts of the State of Utah, in each case located in the City of Salt Lake and County of Salt Lake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding.
- This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Effective January 24th 2023 to February 27th 2023
DownloadTable of Contents
- DEFINITIONS
- "Customer Materials" means all materials and information, including footage, videos, audio, documents, data, know-how, ideas, methodologies, specifications, software, content, and technology, in any form or media, provided or made available to BrainStorm by or on behalf of Customer in connection with this Agreement, whether or not the same: (a) are owned by Customer, a third party or in the public domain; or (b) qualify for or are protected by any Intellectual Property Rights.
- "BrainStorm Content" means all footage, videos, audio, documents, data, know-how, ideas, methodologies, specifications, software, and technology, in any form or media, created, developed or otherwise acquired by BrainStorm, either in performance of its obligations under the SOW or outside the scope thereof. For the avoidance of doubt, BrainStorm Content includes all content included in the Licensed Videos but does not include any Customer Materials.
- "Intellectual Property Rights" means all or any of the following: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases; (d) trade secrets, know-how, and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.
- "Licensed Video[s]" means the BrainStorm audiovisual works, as listed on the Schedule 1, attached to the Order Form.
- “QuickHelp” means the proprietary Software as a Service platform owned and operated by BrainStorm, available at www.quickhelp.com, to which Customer has already purchased a subscription.
- Grant of Rights. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, and in support of Customer’s other agreements set forth herein, BrainStorm hereby grants to Customer during the Term the nonexclusive, non-transferable, and non-sublicensable, world-wide right and license to use and display the Licensed Videos in QuickHelp. Customer acknowledges and agrees that the rights and license granted to it under this Agreement do not include the right to modify, edit, translate, include in collective works, or create derivative works of the Licensed Videos in whole or in part. Customer shall use the Licensed Videos only as permitted under this Agreement and shall not reproduce, distribute, display, perform, or otherwise use or exploit any Licensed Video in any way, in whole or in part, except as expressly permitted by this Agreement.
- Fees. In full consideration of the grant of rights and license hereunder, Customer shall pay BrainStorm the license fee set forth in Schedule 1 (“License Fee”).
- CUSTOMER LICENSE TO BRAINSTORM CONTENT. BrainStorm is and will remain the sole and exclusive owner of all right, title, and interest in and to the BrainStorm Content contained in the Licensed Videos, including all Intellectual Property Rights therein. BrainStorm agrees to make the Licensed Videos available to Customer QuickHelp. Except as provided herein, Customer obtains no Intellectual Property Rights in or to the Licensed Videos, QuickHelp or BrainStorm Content.
- CUSTOMER MATERIALS. To the extent requested by Customer, Customer hereby authorizes BrainStorm to incorporate any or all of the Customer Materials in, and/or use or combine any or all of the Customer Materials as may be provided to BrainStorm from time to time with the Licensed Videos and Customer hereby grants to BrainStorm an irrevocable, royalty-free, fully paid-up, worldwide, perpetual, nonexclusive license to use, publish, reproduce, perform, display, distribute copies of, prepare derivative works based upon, make, have made, sell, offer to sell, import, and otherwise exploit such Customer Materials as a part of or in connection with this Agreement and the Licensed Videos provided to Customer, but only as necessary or appropriate for BrainStorm to produced and provide the Licensed Videos to Customer pursuant to this Agreement.
- OWNERSHIP OF IP. BrainStorm and Customer agree that the Licensed Videos and any other BrainStorm Content made developed under this SOW and Agreement are not “work made for hire” as defined in 17 U.S.C. § 101. Accordingly, except as otherwise provided herein, BrainStorm shall retain and exclusively own all right, title, and interest in and to the Licensed Videos and BrainStorm Content, including the Intellectual Property Rights therein. Except for the limited license in Section 2, Customer shall retain and exclusively own all right, title, and interest in and to the Customer Content, including the Intellectual Property Rights therein.
- CREDIT. Company shall ensure that the Licensed Videos retain all copyright and other intellectual property rights notices.
- Representations and Warranties; Indemnification; Limitation of Liability.
- Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement.
- EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 8.1, BRAINSTORM HEREBY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT, INCLUDING SPECIFICALLY ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BRAINSTORM MAKES NO REPRESENTATION OR WARRANTY THAT IT POSSESSES ANY RELEASES FOR OR CONCERNING ANY INDIVIDUAL, PRODUCT, GRAPHIC, PICTORIAL, ARCHITECTURAL, OR OTHER WORK OF AUTHORSHIP, TRADEMARK, TANGIBLE PROPERTY, OR OTHER MATTER DEPICTED IN THE LICENSED VIDEOS AND COMPANY IS SOLELY RESPONSIBLE FOR OBTAINING ALL LICENSES, CONSENTS, RELEASES, RIGHTS, WAIVERS, AND PERMISSIONS REQUIRED FOR THEIR USE.
- Customer shall indemnify, defend, and hold harmless BrainStorm and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with any third-party claim, suit, action, or proceeding relating to any actual or alleged breach by Customer of its representations, warranties, covenants, or other obligations hereunder, or resulting directly or indirectly from the Customer’s use of the Licensed Videos.
- BRAINSTORM WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION, LOSSES OF BUSINESS, REVENUE, OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER BRAINSTORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- BRAINSTORM’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED ONE TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO LICENSOR IN THE 12 MONTHS PRECEDING THE COMMENCEMENT OF THE EVENTS GIVING RISE TO THE CLAIM.
- MISCELLANEOUS.
- Brainstorm may terminate this Agreement on written notice to Customer at any time, with or without cause. On the expiration or termination of this Agreement, all rights licensed under this Agreement will immediately revert to BrainStorm and Customer shall cause to be inactivated and erased all electronic copies of the Licensed Videos in its control and return or, at Licensor’s written request, destroy, any tangible copies of the Licensed Videos.
- Customer agrees that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its terms and that BrainStorm is entitled to equitable relief, including injunctive relief or specific performance of the terms hereof, in addition to any other remedy to which it is entitled at law or in equity.
- No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party will operate or be construed as a waiver of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Customer shall not assign any of its rights, or delegate any of its obligations, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor's prior written consent. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- This Agreement, including and together with any related attachments, is the sole and entire agreement of the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each party. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement nor invalidate or render unenforceable such term or provision in any other jurisdiction.
- This relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Utah, United States of America, without regard to its conflict of laws provisions. Any legal suit, action, or proceeding arising out of or relating to this Agreement will be instituted exclusively in the federal courts of the United States of America or the courts of the State of Utah, in each case located in the City of Salt Lake and County of Salt Lake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding.
- This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Effective January 24th 2023 to January 24th 2023
DownloadTable of Contents
- DEFINITIONS
- "Customer Materials" means all materials and information, including footage, videos, audio, documents, data, know-how, ideas, methodologies, specifications, software, content, and technology, in any form or media, provided or made available to BrainStorm by or on behalf of Customer in connection with this Agreement, whether or not the same: (a) are owned by Customer, a third party or in the public domain; or (b) qualify for or are protected by any Intellectual Property Rights.
- "BrainStorm Content" means all footage, videos, audio, documents, data, know-how, ideas, methodologies, specifications, software, and technology, in any form or media, created, developed or otherwise acquired by BrainStorm, either in performance of its obligations under the SOW or outside the scope thereof. For the avoidance of doubt, BrainStorm Content includes all content included in the Licensed Videos but does not include any Customer Materials.
- "Intellectual Property Rights" means all or any of the following: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases; (d) trade secrets, know-how, and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.
- "Licensed Video[s]" means the BrainStorm audiovisual works, as listed on the attached Schedule 1.
- “QuickHelp” means the proprietary Software as a Service platform owned and operated by BrainStorm, available at www.quickhelp.com, to which Customer has already purchased a subscription.
- Grant of Rights. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, and in support of Customer’s other agreements set forth herein, BrainStorm hereby grants to Customer during the Term the nonexclusive, non-transferable, and non-sublicensable, world-wide right and license to use and display the Licensed Videos in QuickHelp. Customer acknowledges and agrees that the rights and license granted to it under this Agreement do not include the right to modify, edit, translate, include in collective works, or create derivative works of the Licensed Videos in whole or in part. Customer shall use the Licensed Videos only as permitted under this Agreement and shall not reproduce, distribute, display, perform, or otherwise use or exploit any Licensed Video in any way, in whole or in part, except as expressly permitted by this Agreement.
- Fees. In full consideration of the grant of rights and license hereunder, Customer shall pay BrainStorm the license fee set forth in Schedule 1 (“License Fee”).
- CUSTOMER LICENSE TO BRAINSTORM CONTENT. BrainStorm is and will remain the sole and exclusive owner of all right, title, and interest in and to the BrainStorm Content contained in the Licensed Videos, including all Intellectual Property Rights therein. BrainStorm agrees to make the Licensed Videos available to Customer QuickHelp. Except as provided herein, Customer obtains no Intellectual Property Rights in or to the Licensed Videos, QuickHelp or BrainStorm Content.
- CUSTOMER MATERIALS. To the extent requested by Customer, Customer hereby authorizes BrainStorm to incorporate any or all of the Customer Materials in, and/or use or combine any or all of the Customer Materials as may be provided to BrainStorm from time to time with the Licensed Videos and Customer hereby grants to BrainStorm an irrevocable, royalty-free, fully paid-up, worldwide, perpetual, nonexclusive license to use, publish, reproduce, perform, display, distribute copies of, prepare derivative works based upon, make, have made, sell, offer to sell, import, and otherwise exploit such Customer Materials as a part of or in connection with this Agreement and the Licensed Videos provided to Customer, but only as necessary or appropriate for BrainStorm to produced and provide the Licensed Videos to Customer pursuant to this Agreement.
- OWNERSHIP OF IP. BrainStorm and Customer agree that the Licensed Videos and any other BrainStorm Content made developed under this SOW and Agreement are not “work made for hire” as defined in 17 U.S.C. § 101. Accordingly, except as otherwise provided herein, BrainStorm shall retain and exclusively own all right, title, and interest in and to the Licensed Videos and BrainStorm Content, including the Intellectual Property Rights therein. Except for the limited license in Section 2, Customer shall retain and exclusively own all right, title, and interest in and to the Customer Content, including the Intellectual Property Rights therein.
- CREDIT. Company shall ensure that the Licensed Videos retain all copyright and other intellectual property rights notices.
- Representations and Warranties; Indemnification; Limitation of Liability.
- Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement.
- EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 8.1, BRAINSTORM HEREBY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT, INCLUDING SPECIFICALLY ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BRAINSTORM MAKES NO REPRESENTATION OR WARRANTY THAT IT POSSESSES ANY RELEASES FOR OR CONCERNING ANY INDIVIDUAL, PRODUCT, GRAPHIC, PICTORIAL, ARCHITECTURAL, OR OTHER WORK OF AUTHORSHIP, TRADEMARK, TANGIBLE PROPERTY, OR OTHER MATTER DEPICTED IN THE LICENSED VIDEOS AND COMPANY IS SOLELY RESPONSIBLE FOR OBTAINING ALL LICENSES, CONSENTS, RELEASES, RIGHTS, WAIVERS, AND PERMISSIONS REQUIRED FOR THEIR USE.
- Customer shall indemnify, defend, and hold harmless BrainStorm and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with any third-party claim, suit, action, or proceeding relating to any actual or alleged breach by Customer of its representations, warranties, covenants, or other obligations hereunder, or resulting directly or indirectly from the Customer’s use of the Licensed Videos.
- BRAINSTORM WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION, LOSSES OF BUSINESS, REVENUE, OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER BRAINSTORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- BRAINSTORM’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED ONE TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO LICENSOR IN THE 12 MONTHS PRECEDING THE COMMENCEMENT OF THE EVENTS GIVING RISE TO THE CLAIM.
- MISCELLANEOUS.
- Brainstorm may terminate this Agreement on written notice to Customer at any time, with or without cause. On the expiration or termination of this Agreement, all rights licensed under this Agreement will immediately revert to BrainStorm and Customer shall cause to be inactivated and erased all electronic copies of the Licensed Videos in its control and return or, at Licensor’s written request, destroy, any tangible copies of the Licensed Videos.
- Customer agrees that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its terms and that BrainStorm is entitled to equitable relief, including injunctive relief or specific performance of the terms hereof, in addition to any other remedy to which it is entitled at law or in equity.
- No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party will operate or be construed as a waiver of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Customer shall not assign any of its rights, or delegate any of its obligations, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor's prior written consent. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- This Agreement, including and together with any related attachments, is the sole and entire agreement of the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each party. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement nor invalidate or render unenforceable such term or provision in any other jurisdiction.
- This relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Utah, United States of America, without regard to its conflict of laws provisions. Any legal suit, action, or proceeding arising out of or relating to this Agreement will be instituted exclusively in the federal courts of the United States of America or the courts of the State of Utah, in each case located in the City of Salt Lake and County of Salt Lake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding.
- This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Name of Video | Source | Time |
BrainStorm's Privacy Policy
Effective June 26th 2024
DownloadTable of Contents
BRAINSTORM PRIVACY POLICY
- brainstorminc.com, quickhelp.com, app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; and feedback.brainstorminc.com (collectively referred to as “Websites”)
- The Platform
- Live or virtual events
- Our service and support for our software, training and services
- Our other communications to you, including when you interact with us through our Websites, or when we communicate by phone, email, live chat, and social media
- Identifiers such as a real name, alias, email address, unique personal or online identifier, internet protocol address, account name;
- Internet or other electronic network activity information, including, browsing history, search history, and information regarding a consumer’s interaction with an internet website, or advertisement;
- Professional or employment-related information; and
- Inferences drawn from any of the information identified to create a profile about a consumer reflecting the consumer’s preferences, intelligence, abilities, and aptitudes (limited application applying to tracking and ranking of software training and use).
- Users of the Platform can update their profile under the Settings menu;
- Users of the Platform have an option to upload their photo or delete their photo under the Settings menu;
- Users of the Platform can access information from the Platform software application by selecting the REQUEST DATA button available under the Privacy & Data menu;
- All other inquiries and requests can be submitted to the contact details provided below.
CONTACT INFORMATION
Attn: Data Protection Officer
BrainStorm, Inc.
Effective May 15th 2024 to June 26th 2024
DownloadTable of Contents
BRAINSTORM PRIVACY POLICY
- brainstorminc.com, quickhelp.com, app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; and feedback.brainstorminc.com (collectively referred to as “Websites”)
- The Platform
- Live or virtual events
- Our service and support for our software, training and services
- Our other communications to you, including when you interact with us through our Websites, or when we communicate by phone, email, live chat, and social media
- Identifiers such as a real name, alias, email address, unique personal or online identifier, internet protocol address, account name;
- Internet or other electronic network activity information, including, browsing history, search history, and information regarding a consumer’s interaction with an internet website, or advertisement;
- Professional or employment-related information; and
- Inferences drawn from any of the information identified to create a profile about a consumer reflecting the consumer’s preferences, intelligence, abilities, and aptitudes (limited application applying to tracking and ranking of software training and use).
- Users of the Platform can update their profile under the Settings menu;
- Users of the Platform have an option to upload their photo or delete their photo under the Settings menu;
- Users of the Platform can access information from the Platform software application by selecting the REQUEST DATA button available under the Privacy & Data menu;
- All other inquiries and requests can be submitted to the contact details provided below.
CONTACT INFORMATION
Attn: Data Protection Officer
BrainStorm, Inc.
Effective August 30th 2023 to May 15th 2024
DownloadTable of Contents
BRAINSTORM PRIVACY POLICY
- brainstorminc.com, quickhelp.com, app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; and feedback.brainstorminc.com (collectively referred to as “Websites”)
- The Platform
- Live or virtual events
- Our service and support for our software, training and services
- Our other communications to you, including when you interact with us through our Websites, or when we communicate by phone, email, live chat, and social media
- Identifiers such as a real name, alias, email address, unique personal or online identifier, internet protocol address, account name;
- Internet or other electronic network activity information, including, browsing history, search history, and information regarding a consumer’s interaction with an internet website, or advertisement;
- Professional or employment-related information; and
- Inferences drawn from any of the information identified to create a profile about a consumer reflecting the consumer’s preferences, intelligence, abilities, and aptitudes (limited application applying to tracking and ranking of software training and use).
- Users of the Platform can update their profile under the Settings menu;
- Users of the Platform have an option to upload their photo or delete their photo under the Settings menu;
- Users of the Platform can access information from the Platform software application by selecting the REQUEST DATA button available under the Privacy & Data menu;
- All other inquiries and requests can be submitted to the contact details provided below.
CONTACT INFORMATION
Attn: Data Protection Officer
BrainStorm, Inc.
Effective August 21st 2023 to August 30th 2023
DownloadTable of Contents
BrainStorm Privacy Policy
- brainstorminc.com, quickhelp.com, app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; and feedback.brainstorminc.com (collectively referred to as “Websites”)
- The Platform
- Live or virtual events
- Our service and support for our software, training and services
- Our other communications to you, including when you interact with us through our Websites, or when we communicate by phone, email, live chat, and social media
- Identifiers such as a real name, alias, email address, unique personal or online identifier, internet protocol address, account name;
- Internet or other electronic network activity information, including, browsing history, search history, and information regarding a consumer’s interaction with an internet website, or advertisement;
- Professional or employment-related information; and
- Inferences drawn from any of the information identified to create a profile about a consumer reflecting the consumer’s preferences, intelligence, abilities, and aptitudes (limited application applying to tracking and ranking of software training and use).
- Users of the Platform can update their profile under the Settings menu;
- Users of the Platform have an option to upload their photo or delete their photo under the Settings menu;
- Users of the Platform can access information from the Platform software application by selecting the REQUEST DATA button available under the Privacy & Data menu;
- All other inquiries and requests can be submitted to the contact details provided below.
CONTACT INFORMATION
Attn: Data Protection Officer
BrainStorm, Inc.
Effective August 21st 2023 to August 21st 2023
DownloadTable of Contents
BrainStorm Privacy Policy
- brainstorminc.com, quickhelp.com, app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; and feedback.brainstorminc.com (collectively referred to as “Websites”)
- The Platform
- Live or virtual events
- Our service and support for our software, training and services
- Our other communications to you, including when you interact with us through our Websites, or when we communicate by phone, email, live chat, and social media
- Identifiers such as a real name, alias, email address, unique personal or online identifier, internet protocol address, account name;
- Internet or other electronic network activity information, including, browsing history, search history, and information regarding a consumer’s interaction with an internet website, or advertisement;
- Professional or employment-related information; and
- Inferences drawn from any of the information identified to create a profile about a consumer reflecting the consumer’s preferences, intelligence, abilities, and aptitudes (limited application applying to tracking and ranking of software training and use).
- Users of the Platform can update their profile under the Settings menu;
- Users of the Platform have an option to upload their photo or delete their photo under the Settings menu;
- Users of the Platform can access information from the Platform software application by selecting the REQUEST DATA button available under the Privacy & Data menu;
- All other inquiries and requests can be submitted to the contact details provided below.
CONTACT INFORMATION
Attn: Data Protection Officer
BrainStorm, Inc.
Effective June 5th 2023 to August 21st 2023
DownloadTable of Contents
BrainStorm Privacy Policy
- brainstorminc.com, quickhelp.com, app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; and feedback.brainstorminc.com (collectively referred to as “Websites”)
- The Platform
- Live or virtual events
- Our service and support for our software, training and services
- Our other communications to you, including when you interact with us through our Websites, or when we communicate by phone, email, live chat, and social media
- Identifiers such as a real name, alias, email address, unique personal or online identifier, internet protocol address, account name;
- Internet or other electronic network activity information, including, browsing history, search history, and information regarding a consumer’s interaction with an internet website, or advertisement;
- Professional or employment-related information; and
- Inferences drawn from any of the information identified to create a profile about a consumer reflecting the consumer’s preferences, intelligence, abilities, and aptitudes (limited application applying to tracking and ranking of software training and use).
- Users of the Platform can update their profile under the Settings menu;
- Users of the Platform have an option to upload their photo or delete their photo under the Settings menu;
- Users of the Platform can access information from the Platform software application by selecting the REQUEST DATA button available under the Privacy & Data menu;
- All other inquiries and requests can be submitted to the contact details provided below.
CONTACT INFORMATION
Attn: Data Protection Officer
BrainStorm, Inc.
Effective February 28th 2023 to June 5th 2023
DownloadTable of Contents
BrainStorm Privacy Policy
- brainstorminc.com, quickhelp.com, app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; and feedback.brainstorminc.com (collectively referred to as “Websites”)
- The Platform
- Live or virtual ILT events
- Our service and support for our software, training and services
- Our other communications to you, including when you interact with us through our Websites, or when we communicate by phone, email, live chat, and social media
- Identifiers such as a real name, alias, email address, unique personal or online identifier, internet protocol address, account name;
- Internet or other electronic network activity information, including, browsing history, search history, and information regarding a consumer’s interaction with an internet website, or advertisement;
- Professional or employment-related information; and
- Inferences drawn from any of the information identified to create a profile about a consumer reflecting the consumer’s preferences, intelligence, abilities, and aptitudes (limited application applying to tracking and ranking of software training and use).
- Users of the Platform can update their profile under the Settings menu;
- Users of the Platform have an option to upload their photo or delete their photo under the Settings menu;
- Users of the Platform can access information from the Platform software application by selecting the REQUEST DATA button available under the Privacy & Data menu;
- All other inquiries and requests can be submitted to the contact details provided below.
CONTACT INFORMATION
Attn: Data Protection Officer
BrainStorm, Inc.
Effective April 15th 2022 to February 28th 2023
DownloadTable of Contents
BrainStorm' Privacy Policy
- brainstorminc.com, quickhelp.com, app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; and feedback.brainstorminc.com (collectively referred to as “Websites”)
- The Platform
- Live or virtual ILT events
- Our service and support for our software, training and services
- Our other communications to you, including when you interact with us through our Websites, or when we communicate by phone, email, live chat, and social media
- Identifiers such as a real name, alias, email address, unique personal or online identifier, internet protocol address, account name;
- Internet or other electronic network activity information, including, browsing history, search history, and information regarding a consumer’s interaction with an internet website, or advertisement;
- Professional or employment-related information; and
- Inferences drawn from any of the information identified to create a profile about a consumer reflecting the consumer’s preferences, intelligence, abilities, and aptitudes (limited application applying to tracking and ranking of software training and use).
- Users of the Platform can update their profile under the Settings menu;
- Users of the Platform have an option to upload their photo or delete their photo under the Settings menu;
- Users of the Platform can access information from the Platform software application by selecting the REQUEST DATA button available under the Privacy & Data menu;
- All other inquiries and requests can be submitted to the contact details provided below.
CONTACT INFORMATION
Attn: Data Protection Officer
BrainStorm, Inc.
New Customer Trial Order Form
Effective March 17th 2023
DownloadTable of Contents
BrainStorm Trial Order Form
Service and/or Pack: | BrainStorm Platform + Microsoft Fundamentals Pack
BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | {{formatDate now “MM/DD/YY”}} |
Term: | BrainStorm Platform - 12 months from the Effective Date Microsoft Fundamentals Pack - 3 months from the Effective Date BrainStorm Lite: Microsoft Pack - 9 months from the end of the Microsoft Fundamentals trial access. |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
Effective March 17th 2023 to March 17th 2023
DownloadTable of Contents
BrainStorm Trial Order Form
Service and/or Pack: | BrainStorm Platform + Microsoft Fundamentals Pack
BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | {{formatDate now “MM/DD/YY”}} |
Term: | BrainStorm Platform - 12 months from the Effective Date Microsoft Fundamentals Pack - 3 months from the Effective Date BrainStorm Lite: Microsoft Pack - 9 months from the end of the Microsoft Fundamentals trial access. |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
Effective March 17th 2023 to March 17th 2023
DownloadTable of Contents
Service and/or Pack: | BrainStorm Platform + Microsoft Fundamentals Pack
BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | {{formatDate now “MM/DD/YY”}} |
Term: | BrainStorm Platform - 12 months from the Effective Date Microsoft Fundamentals Pack - 3 months from the Effective Date BrainStorm Lite: Microsoft Pack - 9 months from the end of the Microsoft Fundamentals trial access. |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BrainStorm Trial Terms of Service
Effective June 18th 2024
DownloadTable of Contents
BRAINSTORM TRIAL TERMS OF SERVICE
Effective Date: November 15, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
The BrainStorm Trial Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship, and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 4(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Order Form” means a document provided by BrainStorm to the Customer that includes some or all of the following information related to the Customer's trial: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the fees due from Customer (if any), the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- "Trial Order Form" means an Order Form governing the Customer's use of and access to the Subscription Service during the Trial Term.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Trial Access. Subject to the terms and conditions of this Agreement and the applicable Trial Order Form, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Trial Term, as set forth in the Trial Order Form.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Trial Order Form or for access to the Subscription Service beyond the Trial Term will require a separate purchase(s) and Order Forms and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Trial Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Term and Termination.
- Trial Term. Customer’s access to the Subscription Service pursuant to this trial shall be set forth in the Customer's Trial Order Form, but for a period of time no longer than ninety (90) days from the date Customer first accesses the Subscription Service (the "Trial Term"). As it relates to a trial of BrainStorm Content, Customer will be charged a monthly subscription fee at the end of the BrainStorm Content trial, unless Customer cancels that BrainStorm Content subscription.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Survival. Sections 1 and 3-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws and regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content. This section is only applicable if Customer uploads any Customer Content to the BrainStorm Platform.
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 6(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent-pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and 6(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service. If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon purchase of a subscription to the Subscription Service, that new agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective September 27th 2023 to June 18th 2024
DownloadTable of Contents
BRAINSTORM TRIAL TERMS OF SERVICE
Effective Date: November 15, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
The BrainStorm Trial Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship, and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 4(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Order Form” means a document provided by BrainStorm to the Customer that includes some or all of the following information related to the Customer's trial: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the fees due from Customer (if any), the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- "Trial Order Form" means an Order Form governing the Customer's use of and access to the Subscription Service during the Trial Term.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Trial Access. Subject to the terms and conditions of this Agreement and the applicable Trial Order Form, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Trial Term, as set forth in the Trial Order Form.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Trial Order Form or for access to the Subscription Service beyond the Trial Term will require a separate purchase(s) and Order Forms and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Trial Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Term and Termination.
- Trial Term. Customer’s access to the Subscription Service pursuant to this trial shall be set forth in the Customer's Trial Order Form, but for a period of time no longer than ninety (90) days from the date Customer first accesses the Subscription Service (the "Trial Term"). As it relates to a trial of BrainStorm Content, Customer will be charged a monthly subscription fee at the end of the BrainStorm Content trial, unless Customer cancels that BrainStorm Content subscription.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Survival. Sections 1 and 3-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws and regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content. This section is only applicable if Customer uploads any Customer Content to the BrainStorm Platform.
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 6(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent-pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and 6(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service. If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon purchase of a subscription to the Subscription Service, that new agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective April 3rd 2023 to September 27th 2023
DownloadTable of Contents
BRAINSTORM TRIAL TERMS OF SERVICE
Effective Date: November 15, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
The BrainStorm Trial Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship, and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 4(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Order Form” means a document provided by BrainStorm to the Customer that includes some or all of the following information related to the Customer's trial: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the fees due from Customer (if any), the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- "Trial Order Form" means an Order Form governing the Customer's use of and access to the Subscription Service during the Trial Term.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Trial Access. Subject to the terms and conditions of this Agreement and the applicable Trial Order Form, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Trial Term, as set forth in the Trial Order Form.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Trial Order Form or for access to the Subscription Service beyond the Trial Term will require a separate purchase(s) and Order Forms and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Trial Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Term and Termination.
- Trial Term. Customer’s access to the Subscription Service pursuant to this trial shall be set forth in the Customer's Trial Order Form, but for a period of time no longer than ninety (90) days from the date Customer first accesses the Subscription Service (the "Trial Term"). As it relates to a trial of BrainStorm Content, Customer will be charged a monthly subscription fee at the end of the BrainStorm Content trial, unless Customer cancels that BrainStorm Content subscription.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Survival. Sections 1 and 3-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws and regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content. This section is only applicable if Customer uploads any Customer Content to the BrainStorm Platform.
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 6(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent-pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and 6(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service. If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon purchase of a subscription to the Subscription Service, that new agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective November 16th 2022 to April 3rd 2023
DownloadTable of Contents
BRAINSTORM TRIAL TERMS OF SERVICE
Effective Date: November 15, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
The BrainStorm Trial Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship, and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 4(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Order Form” means a document provided by BrainStorm to the Customer that includes some or all of the following information related to the Customer's trial: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the fees due from Customer (if any), the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- "Trial Order Form" means an Order Form governing the Customer's use of and access to the Subscription Service during the Trial Term.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Trial Access. Subject to the terms and conditions of this Agreement and the applicable Trial Order Form, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Trial Term, as set forth in the Trial Order Form.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Trial Order Form or for access to the Subscription Service beyond the Trial Term will require a separate purchase(s) and Order Forms and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Trial Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Term and Termination.
- Trial Term. Customer’s access to the Subscription Service pursuant to this trial shall be set forth in the Customer's Trial Order Form, but for a period of time no longer than ninety (90) days from the date Customer first accesses the Subscription Service (the "Trial Term"). As it relates to a trial of BrainStorm Content, Customer will be charged a monthly subscription fee at the end of the BrainStorm Content trial, unless Customer cancels that BrainStorm Content subscription.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Survival. Sections 1 and 3-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws and regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content. This section is only applicable if Customer uploads any Customer Content to the BrainStorm Platform.
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 6(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent-pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and 6(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service. If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon purchase of a subscription to the Subscription Service, that new agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective August 9th 2022 to November 16th 2022
DownloadTable of Contents
BRAINSTORM TRIAL TERMS OF SERVICE
Effective Date: July 18, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Trial Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship, and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 4(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Order Form” means a document provided by BrainStorm to the Customer that includes some or all of the following information related to the Customer's trial: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the fees due from Customer (if any), the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- "Trial Order Form" means an Order Form governing the Customer's use of and access to the Subscription Service during the Trial Term.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Trial Access. Subject to the terms and conditions of this Agreement and the applicable Trial Order Form, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Trial Term, as set forth in the Trial Order Form.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Trial Order Form or for access to the Subscription Service beyond the Trial Term will require a separate purchase(s) and Order Forms and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Trial Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Term and Termination.
- Trial Term. Customer’s access to the Subscription Service pursuant to this trial shall be set forth in the Customer's Trial Order Form, but for a period of time no longer than ninety (90) days' from the date Customer first accesses the Subscription Service (the "Trial Term"). As it relates to a trial of BrainStorm Content, Customer will be charged a monthly subscription fee at the end of the BrainStorm Content trial, unless Customer cancels that BrainStorm Content subscription.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Survival. Sections 1 and 3-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws and regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content. This section is only applicable if Customer uploads any Customer Content to the BrainStorm Platform.
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 6(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent-pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and 6(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service . If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon purchase of a subscription to the Subscription Service, that new agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective July 18th 2022 to August 9th 2022
DownloadTable of Contents
BRAINSTORM TRIAL TERMS OF SERVICE
Effective Date: July 18, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Trial Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship, and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 4(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Order Form” means a document provided by BrainStorm to the Customer that includes some or all of the following information related to the Customer's trial: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the fees due from Customer (if any), the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form, or for access to the Subscription Service beyond the Trial Term will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Trial Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Term and Termination.
- Trial Term. Customer’s access to the Subscription Service pursuant to this trial shall be set forth in the Customer's Trial Order Form, but for a period of time no longer than ninety (90) days' from the date Customer first accesses the Subscription Service (the "Trial Term"). As it relates to a trial of BrainStorm Content, Customer will be charged a monthly subscription fee at the end of the BrainStorm Content trial, unless Customer cancels that BrainStorm Content subscription.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Survival. Sections 1 and 3-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 6(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and 6(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service . If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon purchase of a subscription to the Subscription Service, that new agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective June 6th 2022 to July 18th 2022
DownloadTable of Contents
BRAINSTORM TRIAL TERMS OF SERVICE
Effective Date: June 6, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Trial Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship, and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 4(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Order Form” means a document provided by BrainStorm to the Customer that includes some or all of the following information related to the Customer's trial: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the fees due from Customer (if any), the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form, or for access to the Subscription Service beyond the Trial Term will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Trial Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Term and Termination.
- Trial Term. Customer’s access to the Subscription Service pursuant to this trial shall be set forth in the Customer's Trial Order Form, but for a period of time no longer than ninety (90) days' from the date Customer first accesses the Subscription Service (the "Trial Term").
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Survival. Sections 1 and 3-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 6(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and 6(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service . If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon purchase of a subscription to the Subscription Service, that new agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
BrainStorm API Terms & Conditions
Effective August 30th 2023
DownloadTable of Contents
BRAINSTORM API TERMS & CONDITIONS
1. License and Restrictions
- use the APIs in a manner that violates any applicable law, regulation, or third-party right;
- use the APIs in a manner that is or for the purposes of being abusive, fraudulent, defamatory, or malicious;
- use the APIs in a manner that exceeds the rate limits or other usage restrictions that BrainStorm may impose from time to time;
- use the APIs in a manner that would intentionally interfere with or disrupt the Subscription Service or our systems, networks, or servers;
- reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or structure of the APIs;
- modify, adapt, translate, or create derivative works based on the APIs;
- sell, rent, lease, sublicense, distribute, or otherwise transfer the APIs or any data obtained through the APIs to any third party;
- use the APIs to create a competing product or service or to benchmark the Subscription Service against a competing product or service;
- use the APIs to send unsolicited or unauthorized messages, advertising, promotions, or spam;
- use any robot, spider, scraper, crawler, or other automated means to access the APIs outside of its intended use; or
- remove, obscure, or alter any proprietary notices or labels on or in the APIs.
2. API Credentials
3. Data Protection and Privacy
- you will only access and use data obtained through the APIs in accordance with these API Terms and our Privacy Policy;
- you will only collect, store, process, and share data obtained through the APIs in accordance with all applicable laws and regulations and with the consent of the data subjects;
- you will implement appropriate technical and organizational measures to protect data obtained through the APIs from unauthorized or unlawful access;
- use, disclosure, alteration, or destruction;
- you will not use data obtained through the APIs for any purpose that is incompatible with the purpose for which it was provided or authorized by the data subjects;
- you will promptly delete or anonymize data obtained through the APIs when it is no longer needed for the purpose for which it was provided or authorized by the data subjects or when requested by us or the data subjects; and
- you will cooperate with us and the data subjects in exercising their rights under applicable data protection laws and regulations.
4. Ownership and Feedback
5. Support and Updates
7. Limitation of Liability
8. Indemnification
9. Term and Termination
10. General Provisions
Effective August 30th 2023 to August 30th 2023
DownloadTable of Contents
BRAINSTORM API TERMS & CONDITIONS
1. License and Restrictions
- use the APIs in a manner that violates any applicable law, regulation, or third-party right;
- use the APIs in a manner that is or for the purposes of being abusive, fraudulent, defamatory, or malicious;
- use the APIs in a manner that exceeds the rate limits or other usage restrictions that BrainStorm may impose from time to time;
- use the APIs in a manner that would intentionally interfere with or disrupt the Subscription Service or our systems, networks, or servers;
- reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or structure of the APIs;
- modify, adapt, translate, or create derivative works based on the APIs;
- sell, rent, lease, sublicense, distribute, or otherwise transfer the APIs or any data obtained through the APIs to any third party;
- use the APIs to create a competing product or service or to benchmark the Subscription Service against a competing product or service;
- use the APIs to send unsolicited or unauthorized messages, advertising, promotions, or spam;
- use any robot, spider, scraper, crawler, or other automated means to access the APIs outside of its intended use; or
- remove, obscure, or alter any proprietary notices or labels on or in the APIs.
2. API Credentials
3. Data Protection and Privacy
- you will only access and use data obtained through the APIs in accordance with these API Terms and our Privacy Policy;
- you will only collect, store, process, and share data obtained through the APIs in accordance with all applicable laws and regulations and with the consent of the data subjects;
- you will implement appropriate technical and organizational measures to protect data obtained through the APIs from unauthorized or unlawful access;
- use, disclosure, alteration, or destruction;
- you will not use data obtained through the APIs for any purpose that is incompatible with the purpose for which it was provided or authorized by the data subjects;
- you will promptly delete or anonymize data obtained through the APIs when it is no longer needed for the purpose for which it was provided or authorized by the data subjects or when requested by us or the data subjects; and
- you will cooperate with us and the data subjects in exercising their rights under applicable data protection laws and regulations.
4. Ownership and Feedback
5. Support and Updates
7. Limitation of Liability
8. Indemnification
9. Term and Termination
10. General Provisions
Effective May 26th 2023 to August 30th 2023
DownloadTable of Contents
BrainStorm API Terms & Conditions
1. License and Restrictions
- use the APIs in a manner that violates any applicable law, regulation, or third-party right;
- use the APIs in a manner that is or for the purposes of being abusive, fraudulent, defamatory, or malicious;
- use the APIs in a manner that exceeds the rate limits or other usage restrictions that BrainStorm may impose from time to time;
- use the APIs in a manner that would intentionally interfere with or disrupt the Subscription Service or our systems, networks, or servers;
- reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or structure of the APIs;
- modify, adapt, translate, or create derivative works based on the APIs;
- sell, rent, lease, sublicense, distribute, or otherwise transfer the APIs or any data obtained through the APIs to any third party;
- use the APIs to create a competing product or service or to benchmark the Subscription Service against a competing product or service;
- use the APIs to send unsolicited or unauthorized messages, advertising, promotions, or spam;
- use any robot, spider, scraper, crawler, or other automated means to access the APIs outside of its intended use; or
- remove, obscure, or alter any proprietary notices or labels on or in the APIs.
2. API Credentials
3. Data Protection and Privacy
- you will only access and use data obtained through the APIs in accordance with these API Terms and our Privacy Policy;
- you will only collect, store, process, and share data obtained through the APIs in accordance with all applicable laws and regulations and with the consent of the data subjects;
- you will implement appropriate technical and organizational measures to protect data obtained through the APIs from unauthorized or unlawful access;
- use, disclosure, alteration, or destruction;
- you will not use data obtained through the APIs for any purpose that is incompatible with the purpose for which it was provided or authorized by the data subjects;
- you will promptly delete or anonymize data obtained through the APIs when it is no longer needed for the purpose for which it was provided or authorized by the data subjects or when requested by us or the data subjects; and
- you will cooperate with us and the data subjects in exercising their rights under applicable data protection laws and regulations.
4. Ownership and Feedback
5. Support and Updates
7. Limitation of Liability
8. Indemnification
9. Term and Termination
10. General Provisions
Effective May 26th 2023 to May 26th 2023
DownloadTable of Contents
BrainStorm API Terms & Conditions
1. License and Restrictions
- use the APIs in a manner that violates any applicable law, regulation, or third-party right;
- use the APIs in a manner that is or for the purposes of being abusive, fraudulent, defamatory, or malicious;
- use the APIs in a manner that exceeds the rate limits or other usage restrictions that BrainStorm may impose from time to time;
- use the APIs in a manner that interferes with or disrupts the Subscription Service or our systems, networks, or servers;
- reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or structure of the APIs;
- modify, adapt, translate, or create derivative works based on the APIs;
- sell, rent, lease, sublicense, distribute, or otherwise transfer the APIs or any data obtained through the APIs to any third party;
- use the APIs to create a competing product or service or to benchmark the Subscription Service against a competing product or service;
- use the APIs to send unsolicited or unauthorized messages, advertising, promotions, or spam;
- use the APIs to transmit any viruses, worms, Trojan horses, or other malicious code;
- use any robot, spider, scraper, crawler, or other automated means to access the APIs; or
- remove, obscure, or alter any proprietary notices or labels on or in the APIs.
2. API Credentials
3. Data Protection and Privacy
- you will only access and use data obtained through the APIs in accordance with these API Terms and our Privacy Policy;
- you will only collect, store, process, and share data obtained through the APIs in accordance with all applicable laws and regulations and with the consent of the data subjects;
- you will implement appropriate technical and organizational measures to protect data obtained through the APIs from unauthorized or unlawful access;
- use, disclosure, alteration, or destruction;
- you will not use data obtained through the APIs for any purpose that is incompatible with the purpose for which it was provided or authorized by the data subjects;
- you will promptly delete or anonymize data obtained through the APIs when it is no longer needed for the purpose for which it was provided or authorized by the data subjects or when requested by us or the data subjects; and
- you will cooperate with us and the data subjects in exercising their rights under applicable data protection laws and regulations.
4. Ownership and Feedback
5. Support and Updates
7. Limitation of Liability
8. Indemnification
9. Term and Termination
10. General Provisions
Effective May 26th 2023 to May 26th 2023
DownloadTable of Contents
BrainStorm API Terms & Conditions
1. License and Restrictions
- use the APIs in a manner that violates any applicable law, regulation, or third-party right;
- use the APIs in a manner that is or for the purposes of being abusive, fraudulent, defamatory, or malicious;
- use the APIs in a manner that exceeds the rate limits or other usage restrictions that BrainStorm may impose from time to time;
- use the APIs in a manner that interferes with or disrupts the Subscription Service or our systems, networks, or servers;
- reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or structure of the APIs;
- modify, adapt, translate, or create derivative works based on the APIs;
- sell, rent, lease, sublicense, distribute, or otherwise transfer the APIs or any data obtained through the APIs to any third party;
- use the APIs to create a competing product or service or to benchmark the Subscription Service against a competing product or service;
- use the APIs to send unsolicited or unauthorized messages, advertising, promotions, or spam;
- use the APIs to transmit any viruses, worms, Trojan horses, or other malicious code;
- use any robot, spider, scraper, crawler, or other automated means to access the APIs; or
- remove, obscure, or alter any proprietary notices or labels on or in the APIs.
2. API Credentials
3. Data Protection and Privacy
- you will only access and use data obtained through the APIs in accordance with these API Terms and our Privacy Policy;
- you will only collect, store, process, and share data obtained through the APIs in accordance with all applicable laws and regulations and with the consent of the data subjects;
- you will implement appropriate technical and organizational measures to protect data obtained through the APIs from unauthorized or unlawful access;
- use, disclosure, alteration, or destruction;
- you will not use data obtained through the APIs for any purpose that is incompatible with the purpose for which it was provided or authorized by the data subjects;
- you will promptly delete or anonymize data obtained through the APIs when it is no longer needed for the purpose for which it was provided or authorized by the data subjects or when requested by us or the data subjects; and
- you will cooperate with us and the data subjects in exercising their rights under applicable data protection laws and regulations.
4. Ownership and Feedback
5. Support and Updates
7. Limitation of Liability
8. Indemnification
9. Term and Termination
10. General Provisions
BrainStorm's Security Overview
Effective March 13th 2024
DownloadTable of Contents
BRAINSTORM SECURITY OVERVIEW
WHAT IS THE BRAINSTORM PLATFORM
SECURITY OVERVIEW
Data Collected
Sharing Data
Name | Location | Description of Processing |
Microsoft Azure | USA | Hosting services provider |
SendGrid | USA | In-application email messaging |
HubSpot | USA | Email campaign management |
Snowflake | USA | Data warehouse |
Ironclad | USA | Clickwrap management |
Freshdesk | USA | Support desk solution |
Productboard | USA | |
DataDog | USA | Platform monitoring and analytics |
De-Identified Data
- Make improvements to the platform and content,
- Fix bugs and issues that arise,
- Make strategic business decisions,
- Gain helpful insights to better support your, and
- Surface aggregated data points across the platforms.
Security Measures and Controls
Infrastructure
- BrainStorm utilizes tools that monitor threats and vulnerabilities to our infrastructure in real time.
- All customer data is logically segregated within Azure. All encryption keys managed by Azure.
- Azure is geo-redundant, which means that BrainStorm is able to reconstitute its infrastructure to another Azure data center if necessary.
- BrainStorm has employed point-in-time backup configuration. BrainStorm adheres to a CICD (Continuous Integration; Continuous Deployment) methodology.
Access Controls
Other Security Details
- Enforces Azure's optimal password policy, which requires a minimum 8 characters, three out of four of lower and upper case letters, special symbols, and numbers. Click here for more information about this default policy.
- We run monthly pen tests and vulnerability scans. We do not, however, allow customers to run their own.
- Current version of most used web browsers.
- We conduct annual disaster recovery tests.
- Each employee must complete BrainStorm's security training within the first 90 days of hire. This training is reassigned annually for each employee.
- Extensive criminal background check (7 years) are performed on each new hire prior to gaining access to BrainStorm systems.
Effective September 18th 2023 to March 13th 2024
DownloadTable of Contents
BRAINSTORM SECURITY OVERVIEW
WHAT IS THE BRAINSTORM PLATFORM
SECURITY OVERVIEW
Data Collected
Sharing Data
Name | Location | Description of Processing |
Microsoft Azure | USA | Hosting services provider |
SendGrid | USA | In-application email messaging |
Aha! | USA | |
HubSpot | USA | Email campaign management |
Snowflake | USA | Data warehouse |
Ironclad | USA | Clickwrap management |
Freshdesk | USA | Support desk solution |
Productboard | USA | |
DataDog | USA | Platform monitoring and analytics |
De-Identified Data
- Make improvements to the platform and content,
- Fix bugs and issues that arise,
- Make strategic business decisions,
- Gain helpful insights to better support your, and
- Surface aggregated data points across the platforms.
Security Measures and Controls
Infrastructure
- BrainStorm utilizes tools that monitor threats and vulnerabilities to our infrastructure in real time.
- All customer data is logically segregated within Azure. All encryption keys managed by Azure.
- Azure is geo-redundant, which means that BrainStorm is able to reconstitute its infrastructure to another Azure data center if necessary.
- BrainStorm has employed point-in-time backup configuration. BrainStorm adheres to a CICD (Continuous Integration; Continuous Deployment) methodology.
Access Controls
Other Security Details
- Enforces Azure's optimal password policy, which requires a minimum 8 characters, three out of four of lower and upper case letters, special symbols, and numbers. Click here for more information about this default policy.
- We run monthly pen tests and vulnerability scans. We do not, however, allow customers to run their own.
- Current version of most used web browsers.
- We conduct annual disaster recovery tests.
- Each employee must complete BrainStorm's security training within the first 90 days of hire. This training is reassigned annually for each employee.
- Extensive criminal background check (7 years) are performed on each new hire prior to gaining access to BrainStorm systems.
Effective August 30th 2023 to September 18th 2023
DownloadTable of Contents
BRAINSTORM SECURITY OVERVIEW
WHAT IS THE BRAINSTORM PLATFORM
SECURITY OVERVIEW
Data Collected
Sharing Data
Name | Location | Description of Processing |
Microsoft Azure | USA | Hosting services provider |
SendGrid | USA | In-application email messaging |
Aha! | USA | |
HubSpot | USA | Email campaign management |
Snowflake | USA | Data warehouse |
Ironclad | USA | Clickwrap management |
Freshdesk | USA | Support desk solution |
Productboard | USA | |
DataDog | USA | Platform monitoring and analytics |
De-Identified Data
- Make improvements to the platform and content,
- Fix bugs and issues that arise,
- Make strategic business decisions,
- Gain helpful insights to better support your, and
- Surface aggregated data points across the platforms.
Security Measures and Controls
Infrastructure
- BrainStorm utilizes tools that monitor threats and vulnerabilities to our infrastructure in real time.
- All customer data is logically segregated within Azure. All encryption keys managed by Azure.
- Azure is geo-redundant, which means that BrainStorm is able to reconstitute its infrastructure to another Azure data center if necessary.
- BrainStorm has employed point-in-time backup configuration. BrainStorm adheres to a CICD (Continuous Integration; Continuous Deployment) methodology.
Access Controls
Other Security Details
- Enforces Azure's optimal password policy, which requires a minimum 8 characters, three out of four of lower and upper case letters, special symbols, and numbers. Click here for more information about this default policy.
- We run monthly pen tests and vulnerability scans. We do not, however, allow customers to run their own.
- Current version of most used web browsers.
- We conduct annual disaster recovery tests.
- Each employee must complete BrainStorm's security training within the first 90 days of hire. This training is reassigned annually for each employee.
- Extensive criminal background check (7 years) are performed on each new hire prior to gaining access to BrainStorm systems.
Effective August 30th 2023 to August 30th 2023
DownloadTable of Contents
BRAINSTORM SECURITY OVERVIEW
WHAT IS THE BRAINSTORM PLATFORM
SECURITY OVERVIEW
Data Collected
Sharing Data
Name | Location | Description of Processing |
Microsoft Azure | USA | Hosting services provider |
SendGrid | USA | In-application email messaging |
Aha! | USA | |
HubSpot | USA | Email campaign management |
Snowflake | USA | Data warehouse |
Ironclad | USA | Clickwrap management |
Freshdesk | USA | Support desk solution |
Productboard | USA | |
DataDog | USA | Platform monitoring and analytics |
De-Identified Data
- Make improvements to the platform and content,
- Fix bugs and issues that arise,
- Make strategic business decisions,
- Gain helpful insights to better support your, and
- Surface aggregated data points across the platforms.
Security Measures and Controls
Infrastructure
- BrainStorm utilizes tools that monitor threats and vulnerabilities to our infrastructure in real time.
- All customer data is logically segregated within Azure. All encryption keys managed by Azure.
- Azure is geo-redundant, which means that BrainStorm is able to reconstitute its infrastructure to another Azure data center if necessary.
- BrainStorm has employed point-in-time backup configuration. BrainStorm adheres to a CICD (Continuous Integration; Continuous Deployment) methodology.
Access Controls
Other Security Details
- Enforces Azure's optimal password policy, which requires a minimum 8 characters, three out of four of lower and upper case letters, special symbols, and numbers. Click here for more information about this default policy.
- We run monthly pen tests and vulnerability scans. We do not, however, allow customers to run their own.
- Current version of most used web browsers.
- We conduct annual disaster recovery tests.
- Each employee must complete BrainStorm's security training within the first 90 days of hire. This training is reassigned annually for each employee.
- Extensive criminal background check (7 years) are performed on each new hire prior to gaining access to BrainStorm systems.
Effective August 30th 2023 to August 30th 2023
DownloadTable of Contents
BRAINSTORM SECURITY OVERVIEW
WHAT IS THE BRAINSTORM PLATFORM
SECURITY OVERVIEW
Data Collected
Sharing Data
Name | Location | Description of Processing |
Microsoft Azure | USA | Hosting services provider |
SendGrid | USA | In-application email messaging |
Aha! | USA | |
HubSpot | USA | Email campaign management |
Snowflake | USA | Data warehouse |
Ironclad | USA | Clickwrap management |
Freshdesk | USA | Support desk solution |
Productboard | USA | |
DataDog | USA | Platform monitoring and analytics |
De-Identified Data
- Make improvements to the platform and content,
- Fix bugs and issues that arise,
- Make strategic business decisions,
- Gain helpful insights to better support your, and
- Surface aggregated data points across the platforms.
Security Measures and Controls
Infrastructure
- BrainStorm utilizes tools that monitor threats and vulnerabilities to our infrastructure in real time.
- All customer data is logically segregated within Azure. All encryption keys managed by Azure.
- Azure is geo-redundant, which means that BrainStorm is able to reconstitute its infrastructure to another Azure data center if necessary.
- BrainStorm has employed point-in-time backup configuration. BrainStorm adheres to a CICD (Continuous Integration; Continuous Deployment) methodology.
Access Controls
Other Security Details
- Enforces Azure's optimal password policy, which requires a minimum 8 characters, three out of four of lower and upper case letters, special symbols, and numbers. Click here for more information about this default policy.
- We run monthly pen tests and vulnerability scans. We do not, however, allow customers to run their own.
- Current version of most used web browsers.
- We conduct annual disaster recovery tests.
- Each employee must complete BrainStorm's security training within the first 90 days of hire. This training is reassigned annually for each employee.
- Extensive criminal background check (7 years) are performed on each new hire prior to gaining access to BrainStorm systems.
Effective August 30th 2023 to August 30th 2023
DownloadTable of Contents
BrainStorm Security Overview
WHAT IS THE BRAINSTORM PLATFORM
SECURITY OVERVIEW
Data Collected
Sharing Data
Name | Location | Description of Processing |
Microsoft Azure | USA | Hosting services provider |
SendGrid | USA | In-application email messaging |
Aha! | USA | |
HubSpot | USA | Email campaign management |
Snowflake | USA | Data warehouse |
Ironclad | USA | Clickwrap management |
Freshdesk | USA | Support desk solution |
Productboard | USA | |
DataDog | USA | Platform monitoring and analytics |
De-Identified Data
- Make improvements to the platform and content,
- Fix bugs and issues that arise,
- Make strategic business decisions,
- Gain helpful insights to better support your, and
- Surface aggregated data points across the platforms.
Security Measures and Controls
Infrastructure
- BrainStorm utilizes tools that monitor threats and vulnerabilities to our infrastructure in real time.
- All customer data is logically segregated within Azure. All encryption keys managed by Azure.
- Azure is geo-redundant, which means that BrainStorm is able to reconstitute its infrastructure to another Azure data center if necessary.
- BrainStorm has employed point-in-time backup configuration. BrainStorm adheres to a CICD (Continuous Integration; Continuous Deployment) methodology.
Access Controls
Other Security Details
- Enforces Azure's optimal password policy, which requires a minimum 8 characters, three out of four of lower and upper case letters, special symbols, and numbers. Click here for more information about this default policy.
- We run monthly pen tests and vulnerability scans. We do not, however, allow customers to run their own.
- Current version of most used web browsers.
- We conduct annual disaster recovery tests.
- Each employee must complete BrainStorm's security training within the first 90 days of hire. This training is reassigned annually for each employee.
- Extensive criminal background check (7 years) are performed on each new hire prior to gaining access to BrainStorm systems.
Effective June 6th 2023 to August 30th 2023
DownloadTable of Contents
BrainStorm Security Overview
WHAT IS THE BRAINSTORM PLATFORM
SECURITY OVERVIEW
Data Collected
Sharing Data
Name | Location | Description of Processing |
Microsoft Azure | USA | Hosting services provider |
SendGrid | USA | In-application email messaging |
Aha! | USA | |
HubSpot | USA | Email campaign management |
Snowflake | USA | Data warehouse |
Ironclad | USA | Clickwrap management |
Freshdesk | USA | Support desk solution |
Productboard | USA | |
DataDog | USA | Platform monitoring and analytics |
De-Identified Data
- Make improvements to the platform and content,
- Fix bugs and issues that arise,
- Make strategic business decisions,
- Gain helpful insights to better support your, and
- Surface aggregated data points across the platforms.
Security Measures and Controls
Infrastructure
- BrainStorm utilizes tools that monitor threats and vulnerabilities to our infrastructure in real time.
- All customer data is logically segregated within Azure. All encryption keys managed by Azure.
- Azure is geo-redundant, which means that BrainStorm is able to reconstitute its infrastructure to another Azure data center if necessary.
- BrainStorm has employed point-in-time backup configuration. BrainStorm adheres to a CICD (Continuous Integration; Continuous Deployment) methodology.
Access Controls
Other Security Details
- Enforces Azure's optimal password policy, which requires a minimum 8 characters, three out of four of lower and upper case letters, special symbols, and numbers. Click here for more information about this default policy.
- We run monthly pen tests and vulnerability scans. We do not, however, allow customers to run their own.
- Current version of most used web browsers.
- We conduct annual disaster recovery tests.
- Each employee must complete BrainStorm's security training within the first 90 days of hire. This training is reassigned annually for each employee.
- Extensive criminal background check (7 years) are performed on each new hire prior to gaining access to BrainStorm systems.
Effective June 6th 2023 to June 6th 2023
DownloadTable of Contents
BrainStorm Security Overview
WHAT IS THE BRAINSTORM PLATFORM
SECURITY OVERVIEW
Data Collected
Sharing Data
Name | Location | Description of Processing |
Microsoft Azure | USA | Hosting services provider |
SendGrid | USA | In-application email messaging |
Aha! | USA | |
HubSpot | USA | Email campaign management |
Snowflake | USA | Data warehouse |
Ironclad | USA | Clickwrap management |
Freshdesk | USA | Support desk solution |
Productboard | USA | |
DataDog | USA | Platform monitoring and analytics |
De-Identified Data
- Make improvements to the platform and content,
- Fix bugs and issues that arise,
- Make strategic business decisions,
- Gain helpful insights to better support your, and
- Surface aggregated data points across the platforms.
Security Measures and Controls
Infrastructure
- BrainStorm utilizes tools that monitor threats and vulnerabilities to our infrastructure in real time.
- All customer data is logically segregated within Azure. All encryption keys managed by Azure.
- Azure is geo-redundant, which means that BrainStorm is able to reconstitute its infrastructure to another Azure data center if necessary.
- BrainStorm has employed point-in-time backup configuration. BrainStorm adheres to a CICD (Continuous Integration; Continuous Deployment) methodology.
Access Controls
Other Security Details
- Enforces Azure's optimal password policy, which requires a minimum 8 characters, three out of four of lower and upper case letters, special symbols, and numbers. Click here for more information about this default policy.
- We run monthly pen tests and vulnerability scans. We do not, however, allow customers to run their own.
- Current version of most used web browsers.
- We conduct annual disaster recovery tests.
- Each employee must complete BrainStorm's security training within the first 90 days of hire. This training is reassigned annually for each employee.
- Extensive criminal background check (7 years) are performed on each new hire prior to gaining access to BrainStorm systems.
Effective June 5th 2023 to June 6th 2023
DownloadTable of Contents
BrainStorm Security Overview
WHAT IS THE BRAINSTORM PLATFORM
SECURITY OVERVIEW
Data Collected
Sharing Data
Name | Location | Description of Processing |
Microsoft Azure | USA | Hosting services provider |
SendGrid | USA | In-application email messaging |
Aha! | USA | |
HubSpot | USA | Email campaign management |
Snowflake | USA | Data warehouse |
Ironclad | USA | Clickwrap management |
Freshdesk | USA | Support desk solution |
Productboard | USA | |
DataDog | USA | Platform monitoring and analytics |
De-Identified Data
- Make improvements to the platform and content,
- Fix bugs and issues that arise,
- Make strategic business decisions,
- Gain helpful insights to better support your, and
- Surface aggregated data points across the platforms.
Security Measures and Controls
Infrastructure
- BrainStorm utilizes tools that monitor threats and vulnerabilities to our infrastructure in real time.
- All customer data is logically segregated within Azure. All encryption keys managed by Azure.
- Azure is geo-redundant, which means that BrainStorm is able to reconstitute its infrastructure to another Azure data center if necessary.
- BrainStorm has employed point-in-time backup configuration. BrainStorm adheres to a CICD (Continuous Integration; Continuous Deployment) methodology.
Access Controls
Other Security Details
- Enforces Azure's optimal password policy, which requires a minimum 8 characters, three out of four of lower and upper case letters, special symbols, and numbers. Click here for more information about this default policy.
- We run monthly pen tests and vulnerability scans. We do not, however, allow customers to run their own.
- Current version of most used web browsers.
- We conduct annual disaster recovery tests.
- Each employee must complete BrainStorm's security training within the first 90 days of hire. This training is reassigned annually for each employee.
- Extensive criminal background check (7 years) are performed on each new hire prior to gaining access to BrainStorm systems.
Effective March 8th 2023 to June 5th 2023
DownloadTable of Contents
Effective March 8th 2023 to March 8th 2023
DownloadTable of Contents
BrainStorm Platform Early Access Addendum
Effective May 16th 2022
DownloadTable of Contents
BrainStorm Platform Early Access Addendum
PLEASE READ THIS BETA TEST ADDENDUM (THIS “ADDENDUM”) CAREFULLY. BY USING THE SERVICE UPDATED SERVICE(AS DEFINED BELOW) YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS ADDENDUM. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY USE THE UPDATED SERVICE.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC COMMUNICATION TO ENTER INTO BINDING CONTRACTS. TO THE EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER THE LAWS OR REGULATIONS OF ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS.
This Addendum is a supplement to the Subscription Agreement or other such agreement for the provision and use of the Services (the “Agreement”) between BrainStorm, Inc. (“BrainStorm”) and your organization, the party accepting the Agreement (“Customer”).
- Addendum Governs; Definitions. BrainStorm is releasing a new version of its cloud-based QuickHelp™ SaaS platform (the “Updated Service”) and is willing to provide Customer with a beta test subscription to the Updated Service for testing and evaluation purposes (the “Beta Test”) pursuant to the terms of this Addendum. Accordingly, Customer’s use of the Beta Service is contingent upon Customer’s agreement to abide by all the terms and conditions of the Agreement and this Addendum. The Agreement is hereby expressly supplemented and amended by the terms and conditions contained in this Addendum. Except as otherwise provided in this Addendum, the terms of the Agreement will continue to govern Customer’s access and use of the Service. In the event of any conflict between the terms of this Addendum and the terms of the Agreement, the terms of this Addendum shall control. All capitalized terms that are used but not defined in this Addendum shall have the meaning ascribed to such terms in the Agreement. Updated Service
- Beta Test. During the Beta Test, Customer will have access to and use of the Updated Service subject to all of the terms and conditions of the Agreement (as amended by this Addendum) applicable to the Service.
- Publicity; Case Studies; Customer Feedback.
- Notwithstanding anything to the contrary in the Agreement, BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers of the Updated Service and Beta Test to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Customer agrees to cooperate and work with BrainStorm to complete a case study describing Customer’s experience with the Updated Service during the Beta Test. As part of the case study, Customer agrees to provide written reports, such as through surveys, to BrainStorm describing its experience with the Updated Service as reasonably requested by BrainStorm and to promptly notify BrainStorm of the discovery of any material error or difficulty in accessing or using the Updated Service. Such reports shall be provided on a schedule mutually agreed to by the parties and shall also include such other information as BSI may reasonably request.
- Customer hereby grants to BrainStorm a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Updated Service any suggestions, enhancement requests, recommendations, reports or other feedback provided by Customer relating to the Updated Service.
- Customer hereby consents to BrainStorm's publication and any other written or oral disclosure of Customer’s case study developed by BrainStorm based on Customer’s use of the Updated Service. Such case study or case studies may be published in BrainStorm's marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm's external website, to financial and industry analysts, or as BrainStorm otherwise deems appropriate. Notwithstanding the foregoing, BrainStorm shall not disclose the name or use the marks of Customer, unless Customer provides prior written consent.
- Fees. No additional fees will be charged for the Updated Service. The fees for the Service described in the Agreement will continue to apply.
- Warranty Disclaimer. Customer acknowledges that the Updated Service is still in a beta form and that it is provided during the term of the Beta Test for testing and evaluation purposes only. The parties further acknowledge and agree that the Updated Service is provided during the term of the Beta Test on an “AS IS” basis and without warranty of any kind. Accordingly, during the term of the Beta Test, this Section shall supersede and replace the warranties included in the Agreement as applicable to the Updated Service. BSI DISCLAIMS ALL WARRANTIES RELATING TO THE UPDATED SERVICE, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Confidentiality. Customer acknowledges that during the course of the Beta Test it will obtain information relating to the Updated Service and its functionality (all such information is referred to herein as “Proprietary Information”). Such Proprietary Information shall belong solely to BSI and shall be deemed to be the Confidential Information of BSI and subject to the confidentiality restrictions of the Agreement and any other non-disclosure agreement in place between the parties.
- Limitation on Remedies and Damages. The following shall supplement the limitation of liability section of the Agreement: UNDER NO CIRCUMSTANCES WILL BSI BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF OR RELATED TO THE BETA TEST OR THIS ADDENDUM, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD PARTY CLAIMS, EVEN IF BSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BSI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE BETA TEST EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO BSI FOR THE SERVICE DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
- Term and Termination.
- Term. Unless otherwise terminated herein, he term of the Beta Test and this Addendum shall commence upon acceptance of this Addendum and shall be coterminous with the Term set forth in Customer’s Agreement or until the general release of the Updated Services, whichever comes first.
- Termination. The Beta Test and this Addendum may be terminated by BSI for any reason or no reason upon thirty (30) days’ written notice to Customer. Upon any such termination, Customer will have the right to continue accessing and using the Service as provided in the Agreement as if this Addendum had not been accepted.
- Miscellaneous Provisions. Except as expressly amended by this Addendum, all of the terms and conditions of the Agreement shall remain in full force and effect, as if this Addendum had not been accepted. The section and subsection headings in this Addendum are inserted solely as a matter of convenience and for reference, and shall not be considered in the construction or interpretation of any provision hereof.
Effective May 16th 2022 to May 16th 2022
DownloadTable of Contents
BrainStorm Platform Early Access Addendum
PLEASE READ THIS BETA TEST ADDENDUM (THIS “ADDENDUM”) CAREFULLY. BY USING THE SERVICE UPDATED SERVICE(AS DEFINED BELOW) YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS ADDENDUM. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY USE THE UPDATED SERVICE.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC COMMUNICATION TO ENTER INTO BINDING CONTRACTS. TO THE EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER THE LAWS OR REGULATIONS OF ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS.
This Addendum is a supplement to the Subscription Agreement or other such agreement for the provision and use of the Services (the “Agreement”) between BrainStorm, Inc. (“BrainStorm”) and your organization, the party accepting the Agreement (“Customer”).
- Addendum Governs; Definitions. BrainStorm is releasing a new version of its cloud-based QuickHelp™ SaaS platform (the “Updated Service”) and is willing to provide Customer with a beta test subscription to the Updated Service for testing and evaluation purposes (the “Beta Test”) pursuant to the terms of this Addendum. Accordingly, Customer’s use of the Beta Service is contingent upon Customer’s agreement to abide by all the terms and conditions of the Agreement and this Addendum. The Agreement is hereby expressly supplemented and amended by the terms and conditions contained in this Addendum. Except as otherwise provided in this Addendum, the terms of the Agreement will continue to govern Customer’s access and use of the Service. In the event of any conflict between the terms of this Addendum and the terms of the Agreement, the terms of this Addendum shall control. All capitalized terms that are used but not defined in this Addendum shall have the meaning ascribed to such terms in the Agreement. Updated Service
- Beta Test. During the Beta Test, Customer will have access to and use of the Updated Service subject to all of the terms and conditions of the Agreement (as amended by this Addendum) applicable to the Service.
- Publicity; Case Studies; Customer Feedback.
- Notwithstanding anything to the contrary in the Agreement, BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers of the Updated Service and Beta Test to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Customer agrees to cooperate and work with BrainStorm to complete a case study describing Customer’s experience with the Updated Service during the Beta Test. As part of the case study, Customer agrees to provide written reports, such as through surveys, to BrainStorm describing its experience with the Updated Service as reasonably requested by BrainStorm and to promptly notify BrainStorm of the discovery of any material error or difficulty in accessing or using the Updated Service. Such reports shall be provided on a schedule mutually agreed to by the parties and shall also include such other information as BSI may reasonably request.
- Customer hereby grants to BrainStorm a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Updated Service any suggestions, enhancement requests, recommendations, reports or other feedback provided by Customer relating to the Updated Service.
- Customer hereby consents to BrainStorm's publication and any other written or oral disclosure of Customer’s case study developed by BrainStorm based on Customer’s use of the Updated Service. Such case study or case studies may be published in BrainStorm's marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm's external website, to financial and industry analysts, or as BrainStorm otherwise deems appropriate. Notwithstanding the foregoing, BrainStorm shall not disclose the name or use the marks of Customer, unless Customer provides prior written consent.
- Fees. No additional fees will be charged for the Updated Service. The fees for the Service described in the Agreement will continue to apply.
- Warranty Disclaimer. Customer acknowledges that the Updated Service is still in a beta form and that it is provided during the term of the Beta Test for testing and evaluation purposes only. The parties further acknowledge and agree that the Updated Service is provided during the term of the Beta Test on an “AS IS” basis and without warranty of any kind. Accordingly, during the term of the Beta Test, this Section shall supersede and replace the warranties included in the Agreement as applicable to the Updated Service. BSI DISCLAIMS ALL WARRANTIES RELATING TO THE UPDATED SERVICE, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Confidentiality. Customer acknowledges that during the course of the Beta Test it will obtain information relating to the Updated Service and its functionality (all such information is referred to herein as “Proprietary Information”). Such Proprietary Information shall belong solely to BSI and shall be deemed to be the Confidential Information of BSI and subject to the confidentiality restrictions of the Agreement and any other non-disclosure agreement in place between the parties.
- Limitation on Remedies and Damages. The following shall supplement the limitation of liability section of the Agreement: UNDER NO CIRCUMSTANCES WILL BSI BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF OR RELATED TO THE BETA TEST OR THIS ADDENDUM, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD PARTY CLAIMS, EVEN IF BSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BSI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE BETA TEST EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO BSI FOR THE SERVICE DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
- Term and Termination.
- Term. Unless otherwise terminated herein, he term of the Beta Test and this Addendum shall commence upon acceptance of this Addendum and shall be coterminous with the Term set forth in Customer’s Agreement or until the general release of the Updated Services, whichever comes first.
- Termination. The Beta Test and this Addendum may be terminated by BSI for any reason or no reason upon thirty (30) days’ written notice to Customer. Upon any such termination, Customer will have the right to continue accessing and using the Service as provided in the Agreement as if this Addendum had not been accepted.
- Miscellaneous Provisions. Except as expressly amended by this Addendum, all of the terms and conditions of the Agreement shall remain in full force and effect, as if this Addendum had not been accepted. The section and subsection headings in this Addendum are inserted solely as a matter of convenience and for reference, and shall not be considered in the construction or interpretation of any provision hereof.
Effective May 16th 2022 to May 16th 2022
DownloadTable of Contents
BrainStorm Platform Early Access Addendum
PLEASE READ THIS BETA TEST ADDENDUM (THIS “ADDENDUM”) CAREFULLY. BY USING THE SERVICE UPDATED SERVICE(AS DEFINED BELOW) YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS ADDENDUM. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY USE THE UPDATED SERVICE.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC COMMUNICATION TO ENTER INTO BINDING CONTRACTS. TO THE EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER THE LAWS OR REGULATIONS OF ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS.
This Addendum is a supplement to the Subscription Agreement or other such agreement for the provision and use of the Services (the “Agreement”) between BrainStorm, Inc. (“BrainStorm”) and your organization, the party accepting the Agreement (“Customer”).
- Addendum Governs; Definitions. BrainStorm is releasing a new version of its cloud-based QuickHelp™ SaaS platform (the “Updated Service”) and is willing to provide Customer with a beta test subscription to the Updated Service for testing and evaluation purposes (the “Beta Test”) pursuant to the terms of this Addendum. Accordingly, Customer’s use of the Beta Service is contingent upon Customer’s agreement to abide by all the terms and conditions of the Agreement and this Addendum. The Agreement is hereby expressly supplemented and amended by the terms and conditions contained in this Addendum. Except as otherwise provided in this Addendum, the terms of the Agreement will continue to govern Customer’s access and use of the Service. In the event of any conflict between the terms of this Addendum and the terms of the Agreement, the terms of this Addendum shall control. All capitalized terms that are used but not defined in this Addendum shall have the meaning ascribed to such terms in the Agreement. Updated Service
- Beta Test. During the Beta Test, Customer will have access to and use of the Updated Service subject to all of the terms and conditions of the Agreement (as amended by this Addendum) applicable to the Service.
- Publicity; Case Studies; Customer Feedback.
- Notwithstanding anything to the contrary in the Agreement, BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers of the Updated Service and Beta Test to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Customer agrees to cooperate and work with BrainStorm to complete a case study describing Customer’s experience with the Updated Service during the Beta Test. As part of the case study, Customer agrees to provide written reports, such as through surveys, to BrainStorm describing its experience with the Updated Service as reasonably requested by BrainStorm and to promptly notify BrainStorm of the discovery of any material error or difficulty in accessing or using the Updated Service. Such reports shall be provided on a schedule mutually agreed to by the parties and shall also include such other information as BSI may reasonably request.
- Customer hereby grants to BrainStorm a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Updated Service any suggestions, enhancement requests, recommendations, reports or other feedback provided by Customer relating to the Updated Service.
- Customer hereby consents to BrainStorm's publication and any other written or oral disclosure of Customer’s case study developed by BrainStorm based on Customer’s use of the Updated Service. Such case study or case studies may be published in BrainStorm's marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm's external website, to financial and industry analysts, or as BrainStorm otherwise deems appropriate. Notwithstanding the foregoing, BrainStorm shall not disclose the name or use the marks of Customer, unless Customer provides prior written consent.
- Fees. No additional fees will be charged for the Updated Service. The fees for the Service described in the Agreement will continue to apply.
- Warranty Disclaimer. Customer acknowledges that the Updated Service is still in a beta form and that it is provided during the term of the Beta Test for testing and evaluation purposes only. The parties further acknowledge and agree that the Updated Service is provided during the term of the Beta Test on an “AS IS” basis and without warranty of any kind. Accordingly, during the term of the Beta Test, this Section shall supersede and replace the warranties included in the Agreement as applicable to the Updated Service. BSI DISCLAIMS ALL WARRANTIES RELATING TO THE UPDATED SERVICE, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Confidentiality. Customer acknowledges that during the course of the Beta Test it will obtain information relating to the Updated Service and its functionality (all such information is referred to herein as “Proprietary Information”). Such Proprietary Information shall belong solely to BSI and shall be deemed to be the Confidential Information of BSI and subject to the confidentiality restrictions of the Agreement and any other non-disclosure agreement in place between the parties.
- Limitation on Remedies and Damages. The following shall supplement the limitation of liability section of the Agreement: UNDER NO CIRCUMSTANCES WILL BSI BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF OR RELATED TO THE BETA TEST OR THIS ADDENDUM, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD PARTY CLAIMS, EVEN IF BSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BSI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE BETA TEST EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO BSI FOR THE SERVICE DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
- Term and Termination.
- Term. Unless otherwise terminated herein, he term of the Beta Test and this Addendum shall commence upon acceptance of this Addendum and shall be coterminous with the Term set forth in Customer’s Agreement or until the general release of the Updated Services, whichever comes first.
- Termination. The Beta Test and this Addendum may be terminated by BSI for any reason or no reason upon thirty (30) days’ written notice to Customer. Upon any such termination, Customer will have the right to continue accessing and using the Service as provided in the Agreement as if this Addendum had not been accepted.
- Miscellaneous Provisions. Except as expressly amended by this Addendum, all of the terms and conditions of the Agreement shall remain in full force and effect, as if this Addendum had not been accepted. The section and subsection headings in this Addendum are inserted solely as a matter of convenience and for reference, and shall not be considered in the construction or interpretation of any provision hereof.
Effective May 16th 2022 to May 16th 2022
DownloadTable of Contents
BrainStorm Platform Early Access Addendum
PLEASE READ THIS BETA TEST ADDENDUM (THIS “ADDENDUM”) CAREFULLY. BY USING THE SERVICE UPDATED SERVICE(AS DEFINED BELOW) YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS ADDENDUM. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY USE THE UPDATED SERVICE.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC COMMUNICATION TO ENTER INTO BINDING CONTRACTS. TO THE EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER THE LAWS OR REGULATIONS OF ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS.
This Addendum is a supplement to the Subscription Agreement or other such agreement for the provision and use of the Services (the “Agreement”) between BrainStorm, Inc. (“BrainStorm”) and your organization, the party accepting the Agreement (“Customer”).
- Addendum Governs; Definitions. BrainStorm is releasing a new version of its cloud-based QuickHelp™ SaaS platform (the “Updated Service”) and is willing to provide Customer with a beta test subscription to the Updated Service for testing and evaluation purposes (the “Beta Test”) pursuant to the terms of this Addendum. Accordingly, Customer’s use of the Beta Service is contingent upon Customer’s agreement to abide by all the terms and conditions of the Agreement and this Addendum. The Agreement is hereby expressly supplemented and amended by the terms and conditions contained in this Addendum. Except as otherwise provided in this Addendum, the terms of the Agreement will continue to govern Customer’s access and use of the Service. In the event of any conflict between the terms of this Addendum and the terms of the Agreement, the terms of this Addendum shall control. All capitalized terms that are used but not defined in this Addendum shall have the meaning ascribed to such terms in the Agreement. Updated Service
- Beta Test. During the Beta Test, Customer will have access to and use of the Updated Service subject to all of the terms and conditions of the Agreement (as amended by this Addendum) applicable to the Service.
- Publicity; Case Studies; Customer Feedback.
- Notwithstanding anything to the contrary in the Agreement, BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers of the Updated Service and Beta Test to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Customer agrees to cooperate and work with BrainStorm to complete a case study describing Customer’s experience with the Updated Service during the Beta Test. As part of the case study, Customer agrees to provide written reports, such as through surveys, to BrainStorm describing its experience with the Updated Service as reasonably requested by BrainStorm and to promptly notify BrainStorm of the discovery of any material error or difficulty in accessing or using the Updated Service. Such reports shall be provided on a schedule mutually agreed to by the parties and shall also include such other information as BSI may reasonably request.
- Customer hereby grants to BrainStorm a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Updated Service any suggestions, enhancement requests, recommendations, reports or other feedback provided by Customer relating to the Updated Service.
- Customer hereby consents to BrainStorm's publication and any other written or oral disclosure of Customer’s case study developed by BrainStorm based on Customer’s use of the Updated Service. Such case study or case studies may be published in BrainStorm's marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm's external website, to financial and industry analysts, or as BrainStorm otherwise deems appropriate. Notwithstanding the foregoing, BrainStorm shall not disclose the name or use the marks of Customer, unless Customer provides prior written consent.
- Fees. No additional fees will be charged for the Updated Service. The fees for the Service described in the Agreement will continue to apply.
- Warranty Disclaimer. Customer acknowledges that the Updated Service is still in a beta form and that it is provided during the term of the Beta Test for testing and evaluation purposes only. The parties further acknowledge and agree that the Updated Service is provided during the term of the Beta Test on an “AS IS” basis and without warranty of any kind. Accordingly, during the term of the Beta Test, this Section shall supersede and replace the warranties included in the Agreement as applicable to the Updated Service. BSI DISCLAIMS ALL WARRANTIES RELATING TO THE UPDATED SERVICE, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Confidentiality. Customer acknowledges that during the course of the Beta Test it will obtain information relating to the Updated Service and its functionality (all such information is referred to herein as “Proprietary Information”). Such Proprietary Information shall belong solely to BSI and shall be deemed to be the Confidential Information of BSI and subject to the confidentiality restrictions of the Agreement and any other non-disclosure agreement in place between the parties.
- Limitation on Remedies and Damages. The following shall supplement the limitation of liability section of the Agreement: UNDER NO CIRCUMSTANCES WILL BSI BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF OR RELATED TO THE BETA TEST OR THIS ADDENDUM, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD PARTY CLAIMS, EVEN IF BSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BSI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE BETA TEST EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO BSI FOR THE SERVICE DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
- Term and Termination.
- Term. Unless otherwise terminated herein, he term of the Beta Test and this Addendum shall commence upon acceptance of this Addendum and shall be coterminous with the Term set forth in Customer’s Agreement or until the general release of the Updated Services, whichever comes first.
- Termination. The Beta Test and this Addendum may be terminated by BSI for any reason or no reason upon thirty (30) days’ written notice to Customer. Upon any such termination, Customer will have the right to continue accessing and using the Service as provided in the Agreement as if this Addendum had not been accepted.
- Miscellaneous Provisions. Except as expressly amended by this Addendum, all of the terms and conditions of the Agreement shall remain in full force and effect, as if this Addendum had not been accepted. The section and subsection headings in this Addendum are inserted solely as a matter of convenience and for reference, and shall not be considered in the construction or interpretation of any provision hereof.
BrainStorm Terms of Service for Insight Cloud Care Clients
Effective June 17th 2024
DownloadTable of Contents
BRAINSTORM TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, to the extent that Customer opts to purchase additional content beyond the BrainStorm content that is provided as part of Customer’s CSP Subscription. If so, the Billing Period shall be concurrent with or shorter than the Subscription Term.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Fees” means the amount Customer agrees to pay for additional content beyond the BrainStorm Access (as defined below) that is supplied with Customer’s CSP Subscription if Customer opts to purchase that additional content as further described in Section 2(b) below as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Customer's initial access to the BrainStorm Platform via the Internet will be provisioned by Insight in order to access certain BrainStorm Content, as agreed to by Customer and Insight as part of the CSP Subscription ("BrainStorm Access"). Customer's BrainStorm Access, continued use of the Subscription Services, or any additional purchases as set forth in Section 2(b) below are subject to the terms and conditions of this Agreement and upon Customer’s payment of the applicable fees for additional purchases, if any.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not originally provided by Partner will require a separate purchase(s) by Customer and the execution of a separate Order Form(s), and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. Except for BrainStorm Access, the Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Except for the Fees associated with the BrainStorm Access, Customer will pay the Fees as set forth in the applicable Order Form(s) for access to additional BrainStorm Add-ons or BrainStorm Content. The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. Excluding the BrainStorm Access, BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service relating to additional content (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service, including the content that is provided by Insight as part of your BrainStorm Access if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third- Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- BrainStorm Access Term. The term for Customer's BrainStorm Access, as provided by Partner, shall be month-to-month (the “BrainStorm Access Term”).
- a.Term and Renewal. If Customer purchases additional BrainStorm Content beyond the BrainStorm Access, then Customer’s Subscription Term will be as specified in Customer’s Order Form.
- Termination of Access. Customer's access to the BrainStorm Platform will terminate upon the latter of the BrainStorm Access Term or the Subscription Term.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective April 3rd 2023 to June 17th 2024
DownloadTable of Contents
BRAINSTORM TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, to the extent that Customer opts to purchase additional content beyond the BrainStorm content that is provided as part of Customer’s CSP Subscription. If so, the Billing Period shall be concurrent with or shorter than the Subscription Term.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Fees” means the amount Customer agrees to pay for additional content beyond the BrainStorm Access (as defined below) that is supplied with Customer’s CSP Subscription if Customer opts to purchase that additional content as further described in Section 2(b) below as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Customer's initial access to the BrainStorm Platform via the Internet will be provisioned by Insight in order to access certain BrainStorm Content, as agreed to by Customer and Insight as part of the CSP Subscription ("BrainStorm Access"). Customer's BrainStorm Access, continued use of the Subscription Services, or any additional purchases as set forth in Section 2(b) below are subject to the terms and conditions of this Agreement and upon Customer’s payment of the applicable fees for additional purchases, if any.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not originally provided by Partner will require a separate purchase(s) by Customer and the execution of a separate Order Form(s), and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. Except for BrainStorm Access, the Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Except for the Fees associated with the BrainStorm Access, Customer will pay the Fees as set forth in the applicable Order Form(s) for access to additional BrainStorm Add-ons or BrainStorm Content. The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. Excluding the BrainStorm Access, BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service relating to additional content (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service, including the content that is provided by Insight as part of your BrainStorm Access if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third- Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- BrainStorm Access Term. The term for Customer's BrainStorm Access, as provided by Partner, shall be month-to-month (the “BrainStorm Access Term”).
- a.Term and Renewal. If Customer purchases additional BrainStorm Content beyond the BrainStorm Access, then Customer’s Subscription Term will be as specified in Customer’s Order Form.
- Termination of Access. Customer's access to the BrainStorm Platform will terminate upon the latter of the BrainStorm Access Term or the Subscription Term.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 27th 2023 to April 3rd 2023
DownloadTable of Contents
BRAINSTORM TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, to the extent that Customer opts to purchase additional content beyond the BrainStorm content that is provided as part of Customer’s CSP Subscription. If so, the Billing Period shall be concurrent with or shorter than the Subscription Term.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Fees” means the amount Customer agrees to pay for additional content beyond the BrainStorm Access (as defined below) that is supplied with Customer’s CSP Subscription if Customer opts to purchase that additional content as further described in Section 2(b) below as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Customer's initial access to the BrainStorm Platform via the Internet will be provisioned by Insight in order to access certain BrainStorm Content, as agreed to by Customer and Insight as part of the CSP Subscription ("BrainStorm Access"). Customer's BrainStorm Access, continued use of the Subscription Services, or any additional purchases as set forth in Section 2(b) below are subject to the terms and conditions of this Agreement and upon Customer’s payment of the applicable fees for additional purchases, if any.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not originally provided by Partner will require a separate purchase(s) by Customer and the execution of a separate Order Form(s), and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. Except for BrainStorm Access, the Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Except for the Fees associated with the BrainStorm Access, Customer will pay the Fees as set forth in the applicable Order Form(s) for access to additional BrainStorm Add-ons or BrainStorm Content. The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. Excluding the BrainStorm Access, BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service relating to additional content (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service, including the content that is provided by Insight as part of your BrainStorm Access if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third- Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- BrainStorm Access Term. The term for Customer's BrainStorm Access, as provided by Partner, shall be month-to-month (the “BrainStorm Access Term”).
- a.Term and Renewal. If Customer purchases additional BrainStorm Content beyond the BrainStorm Access, then Customer’s Subscription Term will be as specified in Customer’s Order Form.
- Termination of Access. Customer's access to the BrainStorm Platform will terminate upon the latter of the BrainStorm Access Term or the Subscription Term.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 27th 2023 to January 27th 2023
DownloadTable of Contents
BRAINSTORM TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, to the extent that Customer opts to purchase additional content beyond the BrainStorm content that is provided as part of Customer’s CSP Subscription. If so, the Billing Period shall be concurrent with or shorter than the Subscription Term.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Fees” means the amount Customer agrees to pay for additional content beyond the BrainStorm Access (as defined below) that is supplied with Customer’s CSP Subscription if Customer opts to purchase that additional content as further described in Section 2(b) below as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Customer's initial access to the BrainStorm Platform via the Internet will be provisioned by Insight in order to access certain BrainStorm Content, as agreed to by Customer and Insight as part of the CSP Subscription ("BrainStorm Access"). Customer's BrainStorm Access, continued use of the Subscription Services, or any additional purchases as set forth in Section 2(b) below are subject to the terms and conditions of this Agreement and upon Customer’s payment of the applicable fees for additional purchases, if any.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not originally provided by Partner will require a separate purchase(s) by Customer and the execution of a separate Order Form(s), and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. Except for BrainStorm Access, the Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Except for the Fees associated with the BrainStorm Access, Customer will pay the Fees as set forth in the applicable Order Form(s) for access to additional BrainStorm Add-ons or BrainStorm Content. The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. Excluding the BrainStorm Access, BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service relating to additional content (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service, including the content that is provided by Insight as part of your BrainStorm Access if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third- Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- BrainStorm Access Term. The term for Customer's BrainStorm Access, as provided by Partner, shall be month-to-month (the “BrainStorm Access Term”).
- a.Term and Renewal. If Customer purchases additional BrainStorm Content beyond the BrainStorm Access, then Customer’s Subscription Term will be as specified in Customer’s Order Form.
- Termination of Access. Customer's access to the BrainStorm Platform will terminate upon the latter of the BrainStorm Access Term or the Subscription Term.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 24th 2023 to January 27th 2023
DownloadTable of Contents
BRAINSTORM TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, to the extent that Customer opts to purchase additional content beyond the BrainStorm content that is provided as part of Customer’s CSP Subscription. If so, the Billing Period shall be concurrent with or shorter than the Subscription Term.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Fees” means the amount Customer agrees to pay for additional content beyond the BrainStorm Access (as defined below) that is supplied with Customer’s CSP Subscription if Customer opts to purchase that additional content as further described in Section 2(b) below as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Customer's initial access to the BrainStorm Platform via the Internet will be provisioned by Insight in order to access certain BrainStorm Content, as agreed to by Customer and Insight as part of the CSP Subscription ("BrainStorm Access"). Customer's BrainStorm Access, continued use of the Subscription Services, or any additional purchases as set forth in Section 2(b) below are subject to the terms and conditions of this Agreement and upon Customer’s payment of the applicable fees for additional purchases, if any.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not originally provided by Partner will require a separate purchase(s) by Customer and the execution of a separate Order Form(s), and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. Except for BrainStorm Access, the Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Except for the Fees associated with the BrainStorm Access, Customer will pay the Fees as set forth in the applicable Order Form(s) for access to additional BrainStorm Add-ons or BrainStorm Content. The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. Excluding the BrainStorm Access, BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service relating to additional content (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service, including the content that is provided by Insight as part of your BrainStorm Access if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third- Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- BrainStorm Access Term. The term for Customer's BrainStorm Access, as provided by Partner, shall be month-to-month (the “BrainStorm Access Term”).
- a.Term and Renewal. If Customer purchases additional BrainStorm Content beyond the BrainStorm Access, then Customer’s Subscription Term will be as specified in Customer’s Order Form.
- Termination of Access. Customer's access to the BrainStorm Platform will terminate upon the latter of the BrainStorm Access Term or the Subscription Term.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 24th 2023 to January 24th 2023
DownloadTable of Contents
BRAINSTORM TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, to the extent that Customer opts to purchase additional content beyond the BrainStorm content that is provided as part of Customer’s CSP Subscription. If so, the Billing Period shall be concurrent with or shorter than the Subscription Term.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Fees” means the amount Customer agrees to pay for additional content beyond the BrainStorm Access (as defined below) that is supplied with Customer’s CSP Subscription if Customer opts to purchase that additional content as further described in Section 2(b) below as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Customer's initial access to the BrainStorm Platform via the Internet will be provisioned by Insight in order to access certain BrainStorm Content, as agreed to by Customer and Insight as part of the CSP Subscription ("BrainStorm Access"). Customer's BrainStorm Access, continued use of the Subscription Services, or any additional purchases as set forth in Section 2(b) below are subject to the terms and conditions of this Agreement and upon Customer’s payment of the applicable fees for additional purchases, if any.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not originally provided by Partner will require a separate purchase(s) by Customer and the execution of a separate Order Form(s), and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. Except for BrainStorm Access, the Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Except for the Fees associated with the BrainStorm Access, Customer will pay the Fees as set forth in the applicable Order Form(s) for access to additional BrainStorm Add-ons or BrainStorm Content. The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. Excluding the BrainStorm Access, BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service relating to additional content (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service, including the content that is provided by Insight as part of your BrainStorm Access if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third- Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- BrainStorm Access Term. The term for Customer's BrainStorm Access, as provided by Partner, shall be month-to-month (the “BrainStorm Access Term”).
- a.Term and Renewal. If Customer purchases additional BrainStorm Content beyond the BrainStorm Access, then Customer’s Subscription Term will be as specified in Customer’s Order Form.
- Termination of Access. Customer's access to the BrainStorm Platform will terminate upon the latter of the BrainStorm Access Term or the Subscription Term.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 24th 2023 to January 24th 2023
DownloadTable of Contents
BRAINSTORM TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, to the extent that Customer opts to purchase additional content beyond the BrainStorm content that is provided as part of Customer’s CSP Subscription. If so, the Billing Period shall be concurrent with or shorter than the Subscription Term.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Fees” means the amount Customer agrees to pay for additional content beyond the BrainStorm Access (as defined below) that is supplied with Customer’s CSP Subscription if Customer opts to purchase that additional content as further described in Section 2(b) below as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Customer's initial access to the BrainStorm Platform via the Internet will be provisioned by Insight in order to access certain BrainStorm Content, as agreed to by Customer and Insight as part of the CSP Subscription ("BrainStorm Access"). Customer's BrainStorm Access, continued use of the Subscription Services, or any additional purchases as set forth in Section 2(b) below are subject to the terms and conditions of this Agreement and upon Customer’s payment of the applicable fees for additional purchases, if any.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not originally provided by Partner will require a separate purchase(s) by Customer and the execution of a separate Order Form(s), and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. Except for BrainStorm Access, the Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Except for the Fees associated with the BrainStorm Access, Customer will pay the Fees as set forth in the applicable Order Form(s) for access to additional BrainStorm Add-ons or BrainStorm Content. The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. Excluding the BrainStorm Access, BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service relating to additional content (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service, including the content that is provided by Insight as part of your BrainStorm Access if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third- Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- BrainStorm Access Term. The term for Customer's BrainStorm Access, as provided by Partner, shall be month-to-month (the “BrainStorm Access Term”).
- a.Term and Renewal. If Customer purchases additional BrainStorm Content beyond the BrainStorm Access, then Customer’s Subscription Term will be as specified in Customer’s Order Form.
- Termination of Access. Customer's access to the BrainStorm Platform will terminate upon the latter of the BrainStorm Access Term or the Subscription Term.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 24th 2023 to January 24th 2023
DownloadTable of Contents
BRAINSTORM TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, to the extent that Customer opts to purchase additional content beyond the BrainStorm content that is provided as part of Customer’s CSP Subscription. If so, the Billing Period shall be concurrent with or shorter than the Subscription Term.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Fees” means the amount Customer agrees to pay for additional content beyond the BrainStorm Access (as defined below) that is supplied with Customer’s CSP Subscription if Customer opts to purchase that additional content as further described in Section 2(b) below as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Customer's initial access to the BrainStorm Platform via the Internet will be provisioned by Insight in order to access certain BrainStorm Content, as agreed to by Customer and Insight as part of the CSP Subscription ("BrainStorm Access"). Customer's BrainStorm Access, continued use of the Subscription Services, or any additional purchases as set forth in Section 2(b) below are subject to the terms and conditions of this Agreement and upon Customer’s payment of the applicable fees for additional purchases, if any.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not originally provided by Partner will require a separate purchase(s) by Customer and the execution of a separate Order Form(s), and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. Except for BrainStorm Access, the Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Except for the Fees associated with the BrainStorm Access, Customer will pay the Fees as set forth in the applicable Order Form(s) for access to additional BrainStorm Add-ons or BrainStorm Content. The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. Excluding the BrainStorm Access, BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service relating to additional content (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service, including the content that is provided by Insight as part of your BrainStorm Access if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third- Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- BrainStorm Access Term. The term for Customer's BrainStorm Access, as provided by Partner, shall be month-to-month (the “BrainStorm Access Term”).
- a.Term and Renewal. If Customer purchases additional BrainStorm Content beyond the BrainStorm Access, then Customer’s Subscription Term will be as specified in Customer’s Order Form.
- Termination of Access. Customer's access to the BrainStorm Platform will terminate upon the latter of the BrainStorm Access Term or the Subscription Term.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 24th 2023 to January 24th 2023
DownloadTable of Contents
BRAINSTORM TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, to the extent that Customer opts to purchase additional content beyond the BrainStorm content that is provided as part of Customer’s CSP Subscription. If so, the Billing Period shall be concurrent with or shorter than the Subscription Term.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Fees” means the amount Customer agrees to pay for additional content beyond the BrainStorm Access (as defined below) that is supplied with Customer’s CSP Subscription if Customer opts to purchase that additional content as further described in Section 2(b) below as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Customer's initial access to the BrainStorm Platform via the Internet will be provisioned by Insight in order to access certain BrainStorm Content, as agreed to by Customer and Insight as part of the CSP Subscription ("BrainStorm Access"). Customer's BrainStorm Access, continued use of the Subscription Services, or any additional purchases as set forth in Section 2(b) below are subject to the terms and conditions of this Agreement and upon Customer’s payment of the applicable fees for additional purchases, if any.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not originally provided by Partner will require a separate purchase(s) by Customer and the execution of a separate Order Form(s), and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. Except for BrainStorm Access, the Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Except for the Fees associated with the BrainStorm Access, Customer will pay the Fees as set forth in the applicable Order Form(s) for access to additional BrainStorm Add-ons or BrainStorm Content. The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. Excluding the BrainStorm Access, BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service relating to additional content (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service, including the content that is provided by Insight as part of your BrainStorm Access if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third- Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- BrainStorm Access Term. The term for Customer's BrainStorm Access, as provided by Partner, shall be month-to-month (the “BrainStorm Access Term”).
- a.Term and Renewal. If Customer purchases additional BrainStorm Content beyond the BrainStorm Access, then Customer’s Subscription Term will be as specified in Customer’s Order Form.
- Termination of Access. Customer's access to the BrainStorm Platform will terminate upon the latter of the BrainStorm Access Term or the Subscription Term.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective October 7th 2022 to January 24th 2023
DownloadTable of Contents
BRAINSTORM TERMS OF SERVICE
Effective Date: July 31, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Terms of Service (this “Agreement”) is a contract between your organization (the “Customer”), Insight Direct USA, Inc. (the "Partner"), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer, Partner, and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer at Partner's request, how the Parties will interact, and other aspects of the relationship among the Parties. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Customer's initial access to the BrainStorm Platform via the Internet will be provisioned by Partner in order to access certain BrainStorm Content, as agreed to by Customer and Partner ("CSP Access"). The Fees associated with this CSP Access will be paid by Partner on Customer's behalf. Customer's CSP Access, continued use of the Subscription Services, or any additional purchases as set forth in Section 2(b) below are subject to the terms and conditions of this Agreement and upon Customer’s payment of the applicable Fees.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not originally provided by Partner will require a separate purchase(s) by Customer and the execution of a separate Order Form(s), and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. Except for CSP Access, the Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Except for the Fees associated with the CSP Access, Customer will pay the Fees as set forth in the applicable Order Form(s) for access to additional BrainStorm Add-ons or BrainStorm Content. The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- CSP Access Term. The term for Customer's CSP Access, as provided by Partner, shall be month-to-month.
- Term and Renewal. If Customer purchases additional BrainStorm Content beyond the CSP Access, then Customer’s Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- Termination of Access. Customer's access will terminate upon the latter of Customer's CSP Access, as provided by Partner, or the Subscription Term.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective July 27th 2022 to October 7th 2022
DownloadTable of Contents
BRAINSTORM TERMS OF SERVICE
Effective Date: July 31, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Terms of Service (this “Agreement”) is a contract between your organization (the “Customer”), Insight Direct USA, Inc. (the "Partner"), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer, Partner, and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer at Partner's request, how the Parties will interact, and other aspects of the relationship among the Parties. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Customer's initial access to the BrainStorm Platform via the Internet will be provisioned by Partner in order to access certain BrainStorm Content, as agreed to by Customer and Partner ("CSP Access"). The Fees associated with this CSP Access will be paid by Partner on Customer's behalf. Customer's CSP Access, continued use of the Subscription Services, or any additional purchases as set forth in Section 2(b) below are subject to the terms and conditions of this Agreement and upon Customer’s payment of the applicable Fees.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not originally provided by Partner will require a separate purchase(s) by Customer and the execution of a separate Order Form(s), and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. Except for CSP Access, the Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Except for the Fees associated with the CSP Access, Customer will pay the Fees as set forth in the applicable Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- CSP Access Term. The term for Customer's CSP Access, as provided by Partner, shall be month-to-month.
- Term and Renewal. If Customer purchases additional BrainStorm Content beyond the CSP Access, then Customer’s Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- Termination of Access. Customer's access will terminate upon the latter of Customer's CSP Access, as provided by Partner, or the Subscription Term.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
BrainStorm's Lite Customer Terms of Service
Effective October 25th 2024
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | {{formatDate now “MM/DD/YY”}} |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Contract Published and Effective: January 20, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective June 17th 2024 to October 25th 2024
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | {{formatDate now “MM/DD/YY”}} |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Contract Published and Effective: January 20, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective April 3rd 2023 to June 17th 2024
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | {{formatDate now “MM/DD/YY”}} |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Contract Published and Effective: January 20, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective February 28th 2023 to April 3rd 2023
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | {{formatDate now “MM/DD/YY”}} |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Contract Published and Effective: January 20, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective February 16th 2023 to February 28th 2023
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | {{formatDate now “MM/DD/YY”}} |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Contract Published and Effective: January 20, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective February 14th 2023 to February 16th 2023
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | {{formatDate now “MM/DD/YY”}} |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Contract Published and Effective: January 20, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective February 14th 2023 to February 14th 2023
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | {{formatDate now “MM/DD/YY”}} |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Contract Published and Effective: January 20, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 24th 2023 to February 14th 2023
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | {{formatDate now “MM/DD/YY”}} |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Contract Published and Effective: January 20, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 24th 2023 to January 24th 2023
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | The date you click "I Agree" |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Contract Published and Effective: January 20, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 20th 2023 to January 24th 2023
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | The date you click "I Agree" |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Contract Published and Effective: January 20, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 5th 2023 to January 20th 2023
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 5th 2023 to January 5th 2023
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 5th 2023 to January 5th 2023
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 5th 2023 to January 5th 2023
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 5th 2023 to January 5th 2023
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 5th 2023 to January 5th 2023
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite |
Effective Date | |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective January 5th 2023 to January 5th 2023
DownloadTable of Contents
BrainStorm Lite Order Form
Service and/or Pack: | BrainStorm Lite |
Effective Date | |
Term: | 12 months from the Effective Date |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: April 8, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
BrainStorm's Customer ToS for Microsoft Voucher Program
Effective April 3rd 2023
DownloadTable of Contents
BrainStorm Trial Order Form
Service and/or Pack: | BrainStorm Platform + Microsoft Fundamentals Pack
BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | {{formatDate now “MM/DD/YY”}} |
Term: | BrainStorm Platform - 12 months from the Effective Date Microsoft Fundamentals Pack - 3 months from the Effective Date BrainStorm Lite: Microsoft Pack - 9 months from the end of the Microsoft Fundamentals trial access. |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Contract Published and Effective: January 20, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective March 6th 2023 to April 3rd 2023
DownloadTable of Contents
BrainStorm Trial Order Form
Service and/or Pack: | BrainStorm Platform + Microsoft Fundamentals Pack
BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | {{formatDate now “MM/DD/YY”}} |
Term: | BrainStorm Platform - 12 months from the Effective Date Microsoft Fundamentals Pack - 3 months from the Effective Date BrainStorm Lite: Microsoft Pack - 9 months from the end of the Microsoft Fundamentals trial access. |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Contract Published and Effective: January 20, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective February 17th 2023 to March 6th 2023
DownloadTable of Contents
BrainStorm Trial Order Form
Service and/or Pack: | BrainStorm Platform + Microsoft Fundamentals Pack
BrainStorm Lite: BrainStorm Platform + BrainStorm Lite - Microsoft Pack
|
Effective Date | {{formatDate now “MM/DD/YY”}} |
Term: | BrainStorm Platform - 12 months from the Effective Date Microsoft Fundamentals Pack - 3 months from the Effective Date BrainStorm Lite: Microsoft Pack - 9 months from the end of the Microsoft Fundamentals trial access. |
Maximum Number of Users: | Unlimited |
Fees: | $0 |
BRAINSTORM CUSTOMER TERMS OF SERVICE
Contract Published and Effective: January 20, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. If, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). The Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Fee Increases at Renewal. Prior to each Renewal Term, BrainStorm may increase the Fees to the then-current rate for the Subscription Service. BrainStorm will provide notice of any Fee increase prior to renewal.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension. You may want something like this since you are relying on third parties to provide you with content, data and licenses.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s initial Subscription Term will be as specified in Customer’s Order Form (the “Initial Term”). Except as otherwise agreed to in the applicable Order Form, immediately following the Initial Term, Customer’s subscription to the Subscription Service will automatically renew for additional, successive one (1) year terms (each, a “Renewal Term”), unless either Party provides written notice of its intent not to automatically renew at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term. Customer may notify BrainStorm of its intent not to renew by sending such notice to renewals@brainstorminc.com.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
BrainStorm's Sandbox Terms of Service
Effective September 6th 2023
DownloadTable of Contents
BRAINSTORM SANDBOX TERMS OF SERVICE
Effective Date: May 31, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Sandbox Terms of Service (this “Agreement”) is a contract between the customer (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
Subscriptions Offered: | BrainStorm Platform - Microsoft Subscription
|
Maximum Users: | 25 |
Term: | 45 days from date of acceptance |
Total Price: | $0.00 |
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Sandbox Trial Term (as defined below). For example, if Customer subscribes to the Subscription Service for a three (3) year Sandbox Trial Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(c) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Sandbox Trial Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. In accordance with the terms and conditions of this Agreement, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Sandbox Trial Term (as defined below). Customer understands and agrees that its access to the Subscription Service is limited to a short term, limited User-count sandbox trial instance.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than twenty-five (25) Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Subscription Service.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Term and Termination.
- Term. Unless otherwise set forth in an Order Form, Your initial term will terminate forty-five (45) days from the date You first access the Services (the “Sandbox Trial Term”). Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the Sandbox Trial Term will require a separate purchase(s) of the Service and/or Packs and will be governed by separate terms and conditions, which will be presented to Customer at the time of such purchase.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Sandbox Trial Term.
- Survival. Sections 1, 3(d), and 4-14 and any other terms in this Agreement which by their nature must survive after the Sandbox Trial Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Sandbox Trial Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor, is a subsidiary of a direct competitor, or has an ownership interest in a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- Data and Content
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and the Data Processing Addendum (if applicable). For more information, please see BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or have the necessary licenses, rights, consents, and permissions to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise knowingly interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives through and on the BrainStorm Platform. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, violent, pornographic, or depicts harassment or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) promote or display illegal or unlawful activity, (vi) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (vii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Sandbox Trial Term.
- Indemnification.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Sandbox Trial Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Sandbox Trial Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective September 6th 2023 to September 6th 2023
DownloadTable of Contents
BRAINSTORM SANDBOX TERMS OF SERVICE
Effective Date: May 31, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Sandbox Terms of Service (this “Agreement”) is a contract between the customer (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
Subscriptions Offered: | BrainStorm Platform - Microsoft Subscription
|
Maximum Users: | 25 |
Term: | 45 days from date of acceptance |
Total Price: | $0.00 |
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be.
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer or Customer Data.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Sandbox Trial Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. In accordance with the terms and conditions of this Agreement, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Sandbox Trial Term (as defined below). Customer understands and agrees that its access to the Subscription Service is limited to a short term, limited User-count sandbox trial instance.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than twenty-five (25) Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Subscription Service.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Term and Termination.
- Term. Unless otherwise set forth in an Order Form, Your initial term will terminate forty-five (45) days from the date You first access the Services (the “Sandbox Trial Term”). Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the Sandbox Trial Term will require a separate purchase(s) of the Service and/or Packs and will be governed by separate terms and conditions, which will be presented to Customer at the time of such purchase.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Sandbox Trial Term.
- Survival. Sections 1, 3(d), and 4-14 and any other terms in this Agreement which by their nature must survive after the Sandbox Trial Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Sandbox Trial Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Sandbox Trial Term.
- Warranties.
- NO BRAINSTORM WARRANTIES. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED. NEITHER BRAINSTORM NOR ANY LICENSOR, VENDOR, AND/OR SUPPLIER ASSOCIATED WITH BSI MAKES ANY PROMISE, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER BRAINSTORM NOR ANY PERSON OR ENTITY ASSOCIATED WITH BSI PROMISES, REPRESENTS OR WARRANTS THAT THE SITE OR CONTENT OBTAINED THROUGH THE SITE OR ANY PORTION THEREOF WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ITS CONTENT OR MATERIALS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. BRAINSTORM HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersedes all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement. If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Sandbox Trial Term. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address as provided to BrainStorm
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective September 6th 2023 to September 6th 2023
DownloadTable of Contents
BRAINSTORM SANDBOX TERMS OF SERVICE
Effective Date: May 31, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Sandbox Terms of Service (this “Agreement”) is a contract between the customer (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
Subscriptions Offered: | BrainStorm Platform - Microsoft Subscription
|
Maximum Users: | 25 |
Term: | 45 days from date of acceptance |
Total Price: | $0.00 |
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be.
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer or Customer Data.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Sandbox Trial Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. In accordance with the terms and conditions of this Agreement, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Sandbox Trial Term (as defined below). Customer understands and agrees that its access to the Subscription Service is limited to a short term, limited User-count sandbox trial instance.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than twenty-five (25) Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Subscription Service.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Term and Termination.
- Term. Unless otherwise set forth in an Order Form, Your initial term will terminate forty-five (45) days from the date You first access the Services (the “Sandbox Trial Term”). Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the Sandbox Trial Term will require a separate purchase(s) of the Service and/or Packs and will be governed by separate terms and conditions, which will be presented to Customer at the time of such purchase.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Sandbox Trial Term.
- Survival. Sections 1, 3(d), and 4-14 and any other terms in this Agreement which by their nature must survive after the Sandbox Trial Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Sandbox Trial Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Sandbox Trial Term.
- Warranties.
- NO BRAINSTORM WARRANTIES. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED. NEITHER BRAINSTORM NOR ANY LICENSOR, VENDOR, AND/OR SUPPLIER ASSOCIATED WITH BSI MAKES ANY PROMISE, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER BRAINSTORM NOR ANY PERSON OR ENTITY ASSOCIATED WITH BSI PROMISES, REPRESENTS OR WARRANTS THAT THE SITE OR CONTENT OBTAINED THROUGH THE SITE OR ANY PORTION THEREOF WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ITS CONTENT OR MATERIALS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. BRAINSTORM HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersedes all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement. If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Sandbox Trial Term. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address as provided to BrainStorm
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective February 28th 2023 to September 6th 2023
DownloadTable of Contents
BRAINSTORM SANDBOX TERMS OF SERVICE
Effective Date: May 31, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Sandbox Terms of Service (this “Agreement”) is a contract between the customer (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer or Customer Data.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. In accordance with the terms and conditions of this Agreement, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its access to the Subscription Service is limited to a short term, limited User-count sandbox trial instance.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than twenty-five (25) Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Subscription Service.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Term and Termination.
- Term. Unless otherwise set forth in an Order Form, Your initial Subscription Term will terminate forty-five (45) days from the date You first access the Services (the “Sandbox Trial Term”). Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the Sandbox Trial Term will require a separate purchase(s) of the Service and/or Packs and will be governed by separate terms and conditions.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Survival. Sections 1, 3(d), and 4-14 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- NO BRAINSTORM WARRANTIES. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED. NEITHER BRAINSTORM NOR ANY LICENSOR, VENDOR, AND/OR SUPPLIER ASSOCIATED WITH BSI MAKES ANY PROMISE, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER BRAINSTORM NOR ANY PERSON OR ENTITY ASSOCIATED WITH BSI PROMISES, REPRESENTS OR WARRANTS THAT THE SITE OR CONTENT OBTAINED THROUGH THE SITE OR ANY PORTION THEREOF WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ITS CONTENT OR MATERIALS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. BRAINSTORM HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersedes all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement. If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address as provided to BrainStorm
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective June 6th 2022 to February 28th 2023
DownloadTable of Contents
BRAINSTORM SANDBOX TERMS OF SERVICE
Effective Date: May 31, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Sandbox Terms of Service (this “Agreement”) is a contract between the customer (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer or Customer Data.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. In accordance with the terms and conditions of this Agreement, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its access to the Subscription Service is limited to a short term, limited User-count sandbox trial instance.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than twenty-five (25) Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Subscription Service.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Term and Termination.
- Term. Unless otherwise set forth in an Order Form, Your initial Subscription Term will terminate forty-five (45) days from the date You first access the Services (the “Sandbox Trial Term”). Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the Sandbox Trial Term will require a separate purchase(s) of the Service and/or Packs and will be governed by separate terms and conditions.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Survival. Sections 1, 3(d), and 4-14 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- NO BRAINSTORM WARRANTIES. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED. NEITHER BRAINSTORM NOR ANY LICENSOR, VENDOR, AND/OR SUPPLIER ASSOCIATED WITH BSI MAKES ANY PROMISE, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER BRAINSTORM NOR ANY PERSON OR ENTITY ASSOCIATED WITH BSI PROMISES, REPRESENTS OR WARRANTS THAT THE SITE OR CONTENT OBTAINED THROUGH THE SITE OR ANY PORTION THEREOF WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ITS CONTENT OR MATERIALS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. BRAINSTORM HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersedes all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement. If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address as provided to BrainStorm
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective May 31st 2022 to June 6th 2022
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: May 31, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Sandbox Terms of Service (this “Agreement”) is a contract between the customer (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 15(ii) below. Customer will be notified of any material updates or changes via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer or Customer Data.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. In accordance with the terms and conditions of this Agreement, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its access to the Subscription Service is limited to a short term, limited User-count sandbox trial instance.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than twenty-five (25) Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Subscription Service.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Term and Termination.
- Term. Unless otherwise set forth in an Order Form, Your initial Subscription Term will terminate forty-five (45) days from the date You first access the Services (the “Sandbox Trial Term”). Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the Sandbox Trial Term will require a separate purchase(s) of the Service and/or Packs and will be governed by separate terms and conditions.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Survival. Sections 1, 3(d), and 4-14 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data is not individually identifiable and is used in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- NO BRAINSTORM WARRANTIES. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED. NEITHER BRAINSTORM NOR ANY LICENSOR, VENDOR, AND/OR SUPPLIER ASSOCIATED WITH BSI MAKES ANY PROMISE, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER BRAINSTORM NOR ANY PERSON OR ENTITY ASSOCIATED WITH BSI PROMISES, REPRESENTS OR WARRANTS THAT THE SITE OR CONTENT OBTAINED THROUGH THE SITE OR ANY PORTION THEREOF WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ITS CONTENT OR MATERIALS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. BRAINSTORM HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Stree, tAmerican Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address as provided to BrainStorm
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
BrainStorm's T&Cs (Bare Minimum Terms)
Effective October 25th 2024
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: August 31, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will provide Customer with notice of any material update to the terms and conditions of this Agreement, as provided in Section 15(b) below. Customer will be notified via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(c) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- No Fee Content. In addition to access granted by any applicable Order Form, BrainStorm also grants access to certain packs, features, or content with no related fees ("No Fee Content"). The packs, features, or content contained in the No Fee Content is subject to change. In the event of such a change, BrainStorm will provide at least thirty (30) days' notice before any changes are made. Access to No Fee Content begins with the Effective Date and terminates with this Agreement independently of any Order Form.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). All Fees are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any undisputed amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (E) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(d) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to suspend Customer’s access to the Subscription Service under Section 3(d) (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. To the extent Customer is subject to such tax liabilities, Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term. Customer’s Subscription Term will be as specified in Customer’s Order Form (the “Term”).
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and will end on the expiration date established in the Order Form, unless otherwise extended by execution of a subsequent Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(d), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate (collectively, "Changes") BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. Notwithstanding the foregoing, BrainStorm will provide Customer with prior notice of any material Changes made to the Subscription Service. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) knowingly interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor, is a subsidiary of a direct competitor, or has an ownership interest in a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- Data and Content
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and the Data Processing Addendum (if applicable). For more information, please see BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- UK, EU/EEA, and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the United Kingdom or European Union General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the United Kingdom or the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or have the necessary licenses, rights, consents, and permissions to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards (See Section 7(g)(d)), (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise knowingly interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives through and on the BrainStorm Platform. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, violent, pornographic, or depicts or engages in harassment or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (vi) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(g) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, NEITHER PARTY'S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. THE PARTIES ACKNOWLEDGE THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITEHR PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective June 17th 2024 to October 25th 2024
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: August 31, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will provide Customer with notice of any material update to the terms and conditions of this Agreement, as provided in Section 15(b) below. Customer will be notified via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(c) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). All Fees are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any undisputed amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (E) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(d) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to suspend Customer’s access to the Subscription Service under Section 3(d) (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. To the extent Customer is subject to such tax liabilities, Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term. Customer’s Subscription Term will be as specified in Customer’s Order Form (the “Term”).
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and will end on the expiration date established in the Order Form, unless otherwise extended by execution of a subsequent Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(d), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate (collectively, "Changes") BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. Notwithstanding the foregoing, BrainStorm will provide Customer with prior notice of any material Changes made to the Subscription Service. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) knowingly interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor, is a subsidiary of a direct competitor, or has an ownership interest in a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- Data and Content
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and the Data Processing Addendum (if applicable). For more information, please see BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- UK, EU/EEA, and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the United Kingdom or European Union General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the United Kingdom or the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or have the necessary licenses, rights, consents, and permissions to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards (See Section 7(g)(d)), (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise knowingly interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives through and on the BrainStorm Platform. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, violent, pornographic, or depicts or engages in harassment or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (vi) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(g) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, NEITHER PARTY'S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. THE PARTIES ACKNOWLEDGE THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITEHR PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective September 29th 2023 to June 17th 2024
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: August 31, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will provide Customer with notice of any material update to the terms and conditions of this Agreement, as provided in Section 15(b) below. Customer will be notified via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(c) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). All Fees are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any undisputed amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (E) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(d) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to suspend Customer’s access to the Subscription Service under Section 3(d) (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. To the extent Customer is subject to such tax liabilities, Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term. Customer’s Subscription Term will be as specified in Customer’s Order Form (the “Term”).
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and will end on the expiration date established in the Order Form, unless otherwise extended by execution of a subsequent Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(d), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate (collectively, "Changes") BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. Notwithstanding the foregoing, BrainStorm will provide Customer with prior notice of any material Changes made to the Subscription Service. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) knowingly interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor, is a subsidiary of a direct competitor, or has an ownership interest in a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- Data and Content
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and the Data Processing Addendum (if applicable). For more information, please see BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- UK, EU/EEA, and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the United Kingdom or European Union General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the United Kingdom or the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or have the necessary licenses, rights, consents, and permissions to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards (See Section 7(g)(d)), (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise knowingly interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives through and on the BrainStorm Platform. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, violent, pornographic, or depicts or engages in harassment or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (vi) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(g) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, NEITHER PARTY'S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. THE PARTIES ACKNOWLEDGE THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITEHR PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective September 21st 2023 to September 29th 2023
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: August 31, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will provide Customer with notice of any material update to the terms and conditions of this Agreement, as provided in Section 15(b) below. Customer will be notified via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(c) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). All Fees are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any undisputed amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (E) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(d) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to suspend Customer’s access to the Subscription Service under Section 3(d) (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. To the extent Customer is subject to such tax liabilities, Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term. Customer’s Subscription Term will be as specified in Customer’s Order Form (the “Term”).
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and will end on the expiration date established in the Order Form, unless otherwise extended by execution of a subsequent Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(d), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate (collectively, "Changes") BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. Notwithstanding the foregoing, BrainStorm will provide Customer with prior notice of any material Changes made to the Subscription Service. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) knowingly interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor, is a subsidiary of a direct competitor, or has an ownership interest in a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- Data and Content
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and the Data Processing Addendum (if applicable). For more information, please see BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- UK, EU/EEA, and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the United Kingdom or European Union General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the United Kingdom or the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or have the necessary licenses, rights, consents, and permissions to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards (See Section 7(g)(d)), (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise knowingly interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives through and on the BrainStorm Platform. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, violent, pornographic, or depicts or engages in harassment or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (vi) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(g) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, NEITHER PARTY'S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. THE PARTIES ACKNOWLEDGE THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITEHR PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective September 6th 2023 to September 21st 2023
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
Effective Date: August 31, 2023
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Customer Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
BrainStorm will provide Customer with notice of any material update to the terms and conditions of this Agreement, as provided in Section 15(b) below. Customer will be notified via email or through the Admin Portal.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(c) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Subscription Term” means the Initial Term (as defined below) of Customer’s subscription (or access) to the Subscription Service, as specified in the Order Form, and any subsequent Renewal Term (as defined below), during which Customer agrees to pay (or prepay) the Fees under an Order Form.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Subscription Term. Customer understands and agrees that its purchase of a subscription to the Subscription Service is not contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BrainStorm regarding future functionality or features.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Order Form will require a separate purchase(s) and Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will pay the Fees as set forth in the Order Form(s). All payment obligations hereunder are non-cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any undisputed amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (F) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(d) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to suspend Customer’s access to the Subscription Service under Section 3(d) (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. To the extent Customer is subject to such tax liabilities, Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term and Renewal. Customer’s Subscription Term will be as specified in Customer’s Order Form (the “Term”).
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and will end on the expiration date established in the Order Form, unless otherwise extended by execution of a subsequent Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(d), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor, is a subsidiary of a direct competitor, or has an ownership interest in a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- Data and Content
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and the Data Processing Addendum (if applicable). For more information, please see BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or have the necessary licenses, rights, consents, and permissions to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise knowingly interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives through and on the BrainStorm Platform. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, violent, pornographic, or depicts harassment or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) promote or display illegal or unlawful activity, (vi) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (vii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, NEITHER PARTY'S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. THE PARTIES ACKNOWLEDGE THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITEHR PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Customer and BSI Negotiated MSA
Effective September 21st 2023
DownloadTable of Contents
BrainStorm's Customer Terms of Service (for Solution Provider Customers)
Effective October 25th 2024
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
For Solution Provider Customers
Effective Date: March 11, 2024
PLEASE READ THIS AGREEMENT CAREFULLY.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Solution Provider” means that software or Software as a Service vendor from whom Customer has purchased a license or subscription and who have contracted with BrainStorm to provide Customer with access to Solution Provider’s Third-Party Content on the BrainStorm Platform.
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Subscription Term” means the length of time that Customer will be given access to the Subscription Services (as set forth below).
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access.Subject to the terms and conditions of this Agreement and at the direction of Solution Provider, BrainStorm will provide Customer and its Users with access to the Solution Provider’s Third-Party Content via the BrainStorm Platform over the Internet during the Subscription Term.
- No Fee Content. In addition to access granted by any applicable Order Form, BrainStorm also grants access to certain packs, features, or content with no related fees ("No Fee Content"). The packs, features, or content contained in the No Fee Content is subject to change. In the event of such a change, BrainStorm will provide at least thirty (30) days' notice before any changes are made. Access to No Fee Content begins with the Effective Date and terminates with this Agreement independently of any Order Form.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the access provided for by the Solution Provider will require a separate purchase(s) and execution of separate Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms (collectively, “Additional Purchases”).
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. For any Additional Purchases made by Customer, if, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term set forth in that Order Form. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will not be charged by BrainStorm for access to the Solution Provider’s Third-Party Content on the BrainStorm Platform. For any Additional Purchases made, Customer will pay the Fees as set forth in the Order Form(s) for those Additional Purchases. Such Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non- cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term. Unless Customer makes Additional Purchase by executing an Order Form, Customer’s Subscription Term shall be determined between BrainStorm and the Solution Provider. Should Customer make such additional Purchases, Customer’s Subscription Term will be as specified in Customer’s Order Form.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts.
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. CUSTOMER UNDERSTANDS AND AGREES THAT ACCESS TO THE SUBSCRIPTION SERVICES OR ANY ADDITIONAL PURCHASES THAT IT MAKES IS NOT CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES NOR DEPENDENT ON ANY ORAL OR WRITTEN COMMENTS MADE BY BRAINSTORM REGARDING FUTURE FUNCTIONALITY OR FEATURES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective June 17th 2024 to October 25th 2024
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
For Solution Provider Customers
Effective Date: March 11, 2024
PLEASE READ THIS AGREEMENT CAREFULLY.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Solution Provider” means that software or Software as a Service vendor from whom Customer has purchased a license or subscription and who have contracted with BrainStorm to provide Customer with access to Solution Provider’s Third-Party Content on the BrainStorm Platform.
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Subscription Term” means the length of time that Customer will be given access to the Subscription Services (as set forth below).
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access.Subject to the terms and conditions of this Agreement and at the direction of Solution Provider, BrainStorm will provide Customer and its Users with access to the Solution Provider’s Third-Party Content via the BrainStorm Platform over the Internet during the Subscription Term.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the access provided for by the Solution Provider will require a separate purchase(s) and execution of separate Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms (collectively, “Additional Purchases”).
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. For any Additional Purchases made by Customer, if, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term set forth in that Order Form. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will not be charged by BrainStorm for access to the Solution Provider’s Third-Party Content on the BrainStorm Platform. For any Additional Purchases made, Customer will pay the Fees as set forth in the Order Form(s) for those Additional Purchases. Such Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non- cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term. Unless Customer makes Additional Purchase by executing an Order Form, Customer’s Subscription Term shall be determined between BrainStorm and the Solution Provider. Should Customer make such additional Purchases, Customer’s Subscription Term will be as specified in Customer’s Order Form.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts.
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. CUSTOMER UNDERSTANDS AND AGREES THAT ACCESS TO THE SUBSCRIPTION SERVICES OR ANY ADDITIONAL PURCHASES THAT IT MAKES IS NOT CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES NOR DEPENDENT ON ANY ORAL OR WRITTEN COMMENTS MADE BY BRAINSTORM REGARDING FUTURE FUNCTIONALITY OR FEATURES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective March 8th 2024 to June 17th 2024
DownloadTable of Contents
BRAINSTORM CUSTOMER TERMS OF SERVICE
For Solution Provider Customers
Effective Date: March 11, 2024
PLEASE READ THIS AGREEMENT CAREFULLY.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- “Billing Period” means the period for which Customer agrees to prepay Fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if Customer subscribes to the Subscription Service for a three (3) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Fees” means the amount Customer agrees to pay for the Subscription Service and any other services that BrainStorm may provide, as evidenced by the Order Form.
- “Order Form” means a mutually accepted, formal, transaction document, such as an invoice or order form, as applicable, that includes some or all of the following information: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the Fees due from Customer, the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Solution Provider” means that software or Software as a Service vendor from whom Customer has purchased a license or subscription and who have contracted with BrainStorm to provide Customer with access to Solution Provider’s Third-Party Content on the BrainStorm Platform.
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Subscription Term” means the length of time that Customer will be given access to the Subscription Services (as set forth below).
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access.Subject to the terms and conditions of this Agreement and at the direction of Solution Provider, BrainStorm will provide Customer and its Users with access to the Solution Provider’s Third-Party Content via the BrainStorm Platform over the Internet during the Subscription Term.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the access provided for by the Solution Provider will require a separate purchase(s) and execution of separate Order Forms, and may be governed by separate or additional terms and conditions, such as Content Specific Terms (collectively, “Additional Purchases”).
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term. For any Additional Purchases made by Customer, if, at the end of any year of the Subscription Term, the actual number of Users exceeds the maximum number of Users listed in the Order Form by ten percent (10%) or more, then BrainStorm will increase the Fees to account for such additional Users on a pro rata basis for the remainder of the Subscription Term set forth in that Order Form. For this to happen, BrainStorm will complete a review of active Users between ninety (90) and sixty (60) days before the end of each year. BrainStorm will not count Users deleted, removed, or reassigned, unless the Users are temporarily removed to avoid a fee increase.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Fees and Payment.
- Subscription Fees. Customer will not be charged by BrainStorm for access to the Solution Provider’s Third-Party Content on the BrainStorm Platform. For any Additional Purchases made, Customer will pay the Fees as set forth in the Order Form(s) for those Additional Purchases. Such Fees will remain fixed during the Subscription Term unless (a) Customer exceeds the maximum Users (see Section 2.(c)), (b) Customer purchases additional subscriptions or access to the Subscription Service, such as additional BrainStorm Content, (c) the Fees are increased pursuant to Section 3.2, or (d) Customer and BrainStorm mutually agree in writing to modify or amend the Order Form(s). All payment obligations hereunder are non- cancelable, and the Fees paid are non-refundable and non-cancelable unless specifically provided otherwise in this Agreement.
- Payment by Credit Card. If Customer pays the Fees by credit card, Customer authorizes BrainStorm to charge Customer’s credit card or bank account for all Fees payable during the Subscription Term, including any credit card transaction fees that BrainStorm may pass on to the Customer. Customer further authorizes BrainStorm to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party.
- Invoices. BrainStorm will invoice Customer in accordance with the terms of the Order Form (generally at the beginning of each Billing Period). Unless the Order Form states differently, all amounts invoiced are due and payable in advance and within thirty (30) days from the date of invoice.
- Late Fees. If BrainStorm does not receive payment of the invoiced Fees on the appropriate due date, then the Fees will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of the Subscription Service. BrainStorm will provide Customer with notice of non-payment of any amount due. If the Fees are thirty (30) days or more overdue, BrainStorm may, without limiting its other rights and remedies, suspend Customer’s access to the Subscription Service (or any portion thereof) until such amounts are paid in full. In addition, BrainStorm may also suspend Customer’s access to any portion or all of the Subscription Service if: (i) BrainStorm reasonably determines that: (A) Customer’s or any User’s use of the Subscription Service disrupts or poses a security risk to BrainStorm or to any other customer or Third-Party Provider of BrainStorm; (B) Customer, or any User, is using the Subscription Service in breach of this Agreement (including, without limitation, in breach of Section 7(h)) or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) BrainStorm's provision of the Subscription Service to Customer is or becomes prohibited by applicable law; or (ii) any Third-Party Provider has suspended or terminated BrainStorm's access to or use of any Third-Party Data, Third-Party Content or any other services or products required to enable BrainStorm to provide or Customer to access and use the Subscription Service. BrainStorm shall use commercially reasonable efforts to provide written notice of any service suspension under this Section 3(f) (a “Service Suspension”) to Customer and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. BrainStorm shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BrainStorm will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
- Payment Disputes. BrainStorm will not exercise its right to charge interest under Section 3(e) (Late Fees), or its right to suspend Customer’s access to the Subscription Service under Section 3.6 (Suspension of the Subscription Service), if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Subscription Service or on Customer’s use thereof, which may be separately invoiced, excluding any and all taxes based on the net income of BrainStorm.
- Term and Termination.
- Term. Unless Customer makes Additional Purchase by executing an Order Form, Customer’s Subscription Term shall be determined between BrainStorm and the Solution Provider. Should Customer make such additional Purchases, Customer’s Subscription Term will be as specified in Customer’s Order Form.
- No Early Termination; No Refunds. The Subscription Term cannot be canceled early and, unless renewed as provided in Section 4(a) above, will end on the expiration date established in the Order Form. BrainStorm will not provide refunds if Customer decides to stop using the Subscription Service during Customer’s Subscription Term.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Effects of Termination. If Customer terminates this Agreement for cause, BrainStorm will refund any prepaid fees covering the unused portion of the Subscription Term. If BrainStorm terminates this Agreement for cause, without limiting any other available remedies, Customer will pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination relieve Customer of its obligation to pay any Fees payable to BrainStorm for the period prior to the effective date of termination. In addition, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by BrainStorm to Customer hereunder will immediately terminate, and Customer shall immediately cease all use of the Subscription Service.
- Survival. Sections 1, 4(iv), and 5-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts.
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to anyDe-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate anyDe-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 7(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 7(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. CUSTOMER UNDERSTANDS AND AGREES THAT ACCESS TO THE SUBSCRIPTION SERVICES OR ANY ADDITIONAL PURCHASES THAT IT MAKES IS NOT CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES NOR DEPENDENT ON ANY ORAL OR WRITTEN COMMENTS MADE BY BRAINSTORM REGARDING FUTURE FUNCTIONALITY OR FEATURES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO BRAINSTORM FOR THE SUBSCRIPTION SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT AND THE ORDER FORM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT . BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Subscription Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Audit. Customer will permit BrainStorm or its agents, at BrainStorm’s expense, to conduct audits to verify Customer’s compliance with this Agreement. Such audits will be conducted during normal business hours and after reasonable advance notice from BrainStorm to Customer.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Platform Trial Terms of Service
Effective October 25th 2024
DownloadTable of Contents
BRAINSTORM PLATFORM TRIAL TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Sandbox Terms of Service (this “Agreement”) is a contract between the customer (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in an applicable Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in an applicable Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(c) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of any Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in any applicable Order Form.
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, or as identified and set forth in any Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
The Subscription Service.
- Access. In accordance with the terms and conditions of this Agreement, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Sandbox Trial Term (as defined below). Customer understands and agrees that its access to the Subscription Service is limited to a short-term, limited User-count sandbox trial instance as previously agreed between the Parties.
- No Fee Content. In addition to access granted by any applicable Order Form, BrainStorm also grants access to certain packs, features, or content with no related fees ("No Fee Content"). The packs, features, or content contained in the No Fee Content is subject to change. In the event of such a change, BrainStorm will provide at least thirty (30) days' notice before any changes are made. Access to No Fee Content begins with the Effective Date and terminates with this Agreement independently of any Order Form.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content will require a separate purchase and Order Form and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Authorized Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Subscription Service.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
Term and Termination.
- Term. Unless otherwise set forth in an Order Form, Your initial term will terminate following the period previously agreed upon by the Parties (the “Sandbox Trial Term”). Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the Sandbox Trial Term will require a separate purchase(s) of the Service and/or Packs and will be governed by separate terms and conditions, which will be presented to Customer at the time of such purchase.
- Termination for Cause. BrainStorm may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Sandbox Trial Term.
- Survival. Sections 1, 3(d), and 4-14 and any other terms in this Agreement which by their nature must survive after the Sandbox Trial Term to give their intended effect will survive any termination or expiration of this Agreement.
Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Sandbox Trial Term during normal business hours of 8:00 a.m.–6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor, is a subsidiary of a direct competitor, or has an ownership interest in a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
Data and Content
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and the Data Processing Addendum (if applicable). For more information, please see BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or have the necessary licenses, rights, consents, and permissions to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise knowingly interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives through and on the BrainStorm Platform. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, violent, pornographic, or depicts harassment or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) promote or display illegal or unlawful activity, (vi) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (vii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Sandbox Trial Term.
Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
Miscellaneous.
- Entire Agreement. This Agreement, any Order Forms, the Data Protection Addendum (if applicable), the writing establishing this Agreement’s Term and Customer’s number of users, and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Sandbox Trial Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Sandbox Trial Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address as provided by Customer.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective June 18th 2024 to October 25th 2024
DownloadTable of Contents
BRAINSTORM PLATFORM TRIAL TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Sandbox Terms of Service (this “Agreement”) is a contract between the customer (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in an applicable Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in an applicable Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(c) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of any Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in any applicable Order Form.
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, or as identified and set forth in any Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
The Subscription Service.
- Access. In accordance with the terms and conditions of this Agreement, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Sandbox Trial Term (as defined below). Customer understands and agrees that its access to the Subscription Service is limited to a short-term, limited User-count sandbox trial instance as previously agreed between the Parties.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content will require a separate purchase and Order Form and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Authorized Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Subscription Service.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
Term and Termination.
- Term. Unless otherwise set forth in an Order Form, Your initial term will terminate following the period previously agreed upon by the Parties (the “Sandbox Trial Term”). Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the Sandbox Trial Term will require a separate purchase(s) of the Service and/or Packs and will be governed by separate terms and conditions, which will be presented to Customer at the time of such purchase.
- Termination for Cause. BrainStorm may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Sandbox Trial Term.
- Survival. Sections 1, 3(d), and 4-14 and any other terms in this Agreement which by their nature must survive after the Sandbox Trial Term to give their intended effect will survive any termination or expiration of this Agreement.
Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Sandbox Trial Term during normal business hours of 8:00 a.m.–6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor, is a subsidiary of a direct competitor, or has an ownership interest in a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
Data and Content
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and the Data Processing Addendum (if applicable). For more information, please see BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or have the necessary licenses, rights, consents, and permissions to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise knowingly interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives through and on the BrainStorm Platform. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, violent, pornographic, or depicts harassment or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) promote or display illegal or unlawful activity, (vi) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (vii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Sandbox Trial Term.
Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
Miscellaneous.
- Entire Agreement. This Agreement, any Order Forms, the Data Protection Addendum (if applicable), the writing establishing this Agreement’s Term and Customer’s number of users, and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Sandbox Trial Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Sandbox Trial Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address as provided by Customer.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective June 18th 2024 to June 18th 2024
DownloadTable of Contents
BRAINSTORM PLATFORM TRIAL TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Sandbox Terms of Service (this “Agreement”) is a contract between the customer (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in an applicable Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in an applicable Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(c) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of any Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in any applicable Order Form.
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, or as identified and set forth in any Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
The Subscription Service.
- Access. In accordance with the terms and conditions of this Agreement, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Sandbox Trial Term (as defined below). Customer understands and agrees that its access to the Subscription Service is limited to a short-term, limited User-count sandbox trial instance as previously agreed between the Parties.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content will require a separate purchase and Order Form and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Authorized Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Subscription Service.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
Term and Termination.
- Term. Unless otherwise set forth in an Order Form, Your initial term will terminate following the period previously agreed upon by the Parties (the “Sandbox Trial Term”). Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the Sandbox Trial Term will require a separate purchase(s) of the Service and/or Packs and will be governed by separate terms and conditions, which will be presented to Customer at the time of such purchase.
- Termination for Cause. BrainStorm may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Sandbox Trial Term.
- Survival. Sections 1, 3(d), and 4-14 and any other terms in this Agreement which by their nature must survive after the Sandbox Trial Term to give their intended effect will survive any termination or expiration of this Agreement.
Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Sandbox Trial Term during normal business hours of 8:00 a.m.–6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor, is a subsidiary of a direct competitor, or has an ownership interest in a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
Data and Content
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and the Data Processing Addendum (if applicable). For more information, please see BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or have the necessary licenses, rights, consents, and permissions to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise knowingly interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives through and on the BrainStorm Platform. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, violent, pornographic, or depicts harassment or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) promote or display illegal or unlawful activity, (vi) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (vii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Sandbox Trial Term.
Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
Miscellaneous.
- Entire Agreement. This Agreement, any Order Forms, the Data Protection Addendum (if applicable), the writing establishing this Agreement’s Term and Customer’s number of users, and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Sandbox Trial Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Sandbox Trial Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address as provided by Customer.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective June 18th 2024 to June 18th 2024
DownloadTable of Contents
BRAINSTORM PLATFORM TRIAL TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Sandbox Terms of Service (this “Agreement”) is a contract between the customer (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in an applicable Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in an applicable Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(c) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of any Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in any applicable Order Form.
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, or as identified and set forth in any Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
The Subscription Service.
- Access. In accordance with the terms and conditions of this Agreement, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Sandbox Trial Term (as defined below). Customer understands and agrees that its access to the Subscription Service is limited to a short-term, limited User-count sandbox trial instance as previously agreed between the Parties.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content will require a separate purchase and Order Form and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Authorized Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Subscription Service.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
Term and Termination.
- Term. Unless otherwise set forth in an Order Form, Your initial term will terminate following the period previously agreed upon by the Parties (the “Sandbox Trial Term”). Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the Sandbox Trial Term will require a separate purchase(s) of the Service and/or Packs and will be governed by separate terms and conditions, which will be presented to Customer at the time of such purchase.
- Termination for Cause. BrainStorm may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Sandbox Trial Term.
- Survival. Sections 1, 3(d), and 4-14 and any other terms in this Agreement which by their nature must survive after the Sandbox Trial Term to give their intended effect will survive any termination or expiration of this Agreement.
Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Sandbox Trial Term during normal business hours of 8:00 a.m.–6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor, is a subsidiary of a direct competitor, or has an ownership interest in a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
Data and Content
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and the Data Processing Addendum (if applicable). For more information, please see BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or have the necessary licenses, rights, consents, and permissions to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise knowingly interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives through and on the BrainStorm Platform. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, violent, pornographic, or depicts harassment or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) promote or display illegal or unlawful activity, (vi) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (vii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Sandbox Trial Term.
Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
Miscellaneous.
- Entire Agreement. This Agreement, any Order Forms, the Data Protection Addendum (if applicable), the writing establishing this Agreement’s Term and Customer’s number of users, and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Sandbox Trial Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Sandbox Trial Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address as provided by Customer.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective June 18th 2024 to June 18th 2024
DownloadTable of Contents
BRAINSTORM PLATFORM TRIAL TERMS OF SERVICE
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Sandbox Terms of Service (this “Agreement”) is a contract between the customer (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in an applicable Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in an applicable Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(c) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of any Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in any applicable Order Form.
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, or as identified and set forth in any Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
The Subscription Service.
- Access. In accordance with the terms and conditions of this Agreement, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Sandbox Trial Term (as defined below). Customer understands and agrees that its access to the Subscription Service is limited to a short-term, limited User-count sandbox trial instance as previously agreed between the Parties.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content will require a separate purchase and Order Form and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Authorized Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Subscription Service.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
Term and Termination.
- Term. Unless otherwise set forth in an Order Form, Your initial term will terminate following the period previously agreed upon by the Parties (the “Sandbox Trial Term”). Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the Sandbox Trial Term will require a separate purchase(s) of the Service and/or Packs and will be governed by separate terms and conditions, which will be presented to Customer at the time of such purchase.
- Termination for Cause. BrainStorm may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Sandbox Trial Term.
- Survival. Sections 1, 3(d), and 4-14 and any other terms in this Agreement which by their nature must survive after the Sandbox Trial Term to give their intended effect will survive any termination or expiration of this Agreement.
Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Sandbox Trial Term during normal business hours of 8:00 a.m.–6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor, is a subsidiary of a direct competitor, or has an ownership interest in a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
Data and Content
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and the Data Processing Addendum (if applicable). For more information, please see BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or have the necessary licenses, rights, consents, and permissions to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise knowingly interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives through and on the BrainStorm Platform. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, violent, pornographic, or depicts harassment or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) promote or display illegal or unlawful activity, (vi) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (vii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Sandbox Trial Term.
Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
Miscellaneous.
- Entire Agreement. This Agreement, any Order Forms, the Data Protection Addendum (if applicable), the writing establishing this Agreement’s Term and Customer’s number of users, and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Sandbox Trial Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Sandbox Trial Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address as provided by Customer.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective June 18th 2024 to June 18th 2024
DownloadTable of Contents
BRAINSTORM PLATFORM TRIAL TERMS OF SERVICE
Effective Date: April 11, 2024
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Sandbox Terms of Service (this “Agreement”) is a contract between the customer (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in an applicable Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in an applicable Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(c) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of any Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in any applicable Order Form.
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, or as identified and set forth in any Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
The Subscription Service.
- Access. In accordance with the terms and conditions of this Agreement, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Sandbox Trial Term (as defined below). Customer understands and agrees that its access to the Subscription Service is limited to a short-term, limited User-count sandbox trial instance as previously agreed between the Parties.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content will require a separate purchase and Order Form and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Authorized Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Subscription Service.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
Term and Termination.
- Term. Unless otherwise set forth in an Order Form, Your initial term will terminate following the period previously agreed upon by the Parties (the “Sandbox Trial Term”). Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the Sandbox Trial Term will require a separate purchase(s) of the Service and/or Packs and will be governed by separate terms and conditions, which will be presented to Customer at the time of such purchase.
- Termination for Cause. BrainStorm may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Sandbox Trial Term.
- Survival. Sections 1, 3(d), and 4-14 and any other terms in this Agreement which by their nature must survive after the Sandbox Trial Term to give their intended effect will survive any termination or expiration of this Agreement.
Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Sandbox Trial Term during normal business hours of 8:00 a.m.–6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor, is a subsidiary of a direct competitor, or has an ownership interest in a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
Data and Content
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and the Data Processing Addendum (if applicable). For more information, please see BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or have the necessary licenses, rights, consents, and permissions to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise knowingly interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives through and on the BrainStorm Platform. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, violent, pornographic, or depicts harassment or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) promote or display illegal or unlawful activity, (vi) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (vii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Sandbox Trial Term.
Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
Miscellaneous.
- Entire Agreement. This Agreement, any Order Forms, the Data Protection Addendum (if applicable), the writing establishing this Agreement’s Term and Customer’s number of users, and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Sandbox Trial Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Sandbox Trial Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address as provided by Customer.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective April 11th 2024 to June 18th 2024
DownloadTable of Contents
BRAINSTORM PLATFORM TRIAL TERMS OF SERVICE
Effective Date: April 11, 2024
PLEASE READ THIS AGREEMENT CAREFULLY.
This BrainStorm Sandbox Terms of Service (this “Agreement”) is a contract between the customer (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in an applicable Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in an applicable Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 5(c) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of any Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in any applicable Order Form.
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPPA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.”
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, or as identified and set forth in any Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
The Subscription Service.
- Access. In accordance with the terms and conditions of this Agreement, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Sandbox Trial Term (as defined below). Customer understands and agrees that its access to the Subscription Service is limited to a short-term, limited User-count sandbox trial instance as previously agreed between the Parties.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content will require a separate purchase and Order Form and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Authorized Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Subscription Service.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
Term and Termination.
- Term. Unless otherwise set forth in an Order Form, Your initial term will terminate following the period previously agreed upon by the Parties (the “Sandbox Trial Term”). Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content beyond the Sandbox Trial Term will require a separate purchase(s) of the Service and/or Packs and will be governed by separate terms and conditions, which will be presented to Customer at the time of such purchase.
- Termination for Cause. BrainStorm may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Sandbox Trial Term.
- Survival. Sections 1, 3(d), and 4-14 and any other terms in this Agreement which by their nature must survive after the Sandbox Trial Term to give their intended effect will survive any termination or expiration of this Agreement.
Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 5 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 5(a), BrainStorm will provide technical support to Customer during the Sandbox Trial Term during normal business hours of 8:00 a.m.–6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws, regulations, and/or BrainStorm’s Privacy Policy. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor, is a subsidiary of a direct competitor, or has an ownership interest in a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
Data and Content
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, and the Data Processing Addendum (if applicable). For more information, please see BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors as necessary to provide the Subscription Service. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer Data and/or Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content, or through whom Customer has received access to the Services. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer Data and/or Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Customer Data and/or Usage Data is in accordance with any applicable laws (without limitation, data privacy laws) and for the purpose of providing the Subscription Service.
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or have the necessary licenses, rights, consents, and permissions to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise knowingly interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives through and on the BrainStorm Platform. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, violent, pornographic, or depicts harassment or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) promote or display illegal or unlawful activity, (vi) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (vii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 6 and 7(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Sandbox Trial Term.
Warranties.
- BrainStorm Warranties. BrainStorm warrants that the BrainStorm Platform and BrainStorm Content will be provided materially in accordance with BrainStorm’s published documentation for the BrainStorm Platform and BrainStorm Content, as found on the Website. For any breach of such warranty, Customer’s exclusive remedy will be as provided in the “Termination for Cause” and “Effects of Termination” sections above. BrainStorm will have no liability under this section if the Subscription Service has been modified or altered by anyone other than BrainStorm, or if the Subscription Service has been abused or misapplied.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
Miscellaneous.
- Entire Agreement. This Agreement, any Order Forms, the Data Protection Addendum (if applicable), the writing establishing this Agreement’s Term and Customer’s number of users, and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but Customer’s Fees and charges will not change during the Sandbox Trial Term except as explained in the Fees section above). If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Sandbox Trial Term. Upon renewal, the updated Agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address as provided by Customer.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
BrainStorm Trial Terms of Service 45
Effective October 25th 2024
DownloadTable of Contents
BRAINSTORM TRIAL TERMS OF SERVICE
Effective Date: November 15, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
The BrainStorm Trial Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship, and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 4(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Order Form” means a document provided by BrainStorm to the Customer that includes some or all of the following information related to the Customer's trial: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the fees due from Customer (if any), the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- "Trial Order Form" means an Order Form governing the Customer's use of and access to the Subscription Service during the Trial Term.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Trial Access. Subject to the terms and conditions of this Agreement and the applicable Trial Order Form, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Trial Term, as set forth in the Trial Order Form.
- No Fee Content. In addition to access granted by any applicable Order Form, BrainStorm also grants access to certain packs, features, or content with no related fees ("No Fee Content"). The packs, features, or content contained in the No Fee Content is subject to change. In the event of such a change, BrainStorm will provide at least thirty (30) days' notice before any changes are made. Access to No Fee Content begins with the Effective Date and terminates with this Agreement independently of any Order Form.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Trial Order Form or for access to the Subscription Service beyond the Trial Term will require a separate purchase(s) and Order Forms and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Trial Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Term and Termination.
- Trial Term. Customer’s access to the Subscription Service pursuant to this trial shall be set forth in the Customer's Trial Order Form, but for a period of time no longer than forty-five (45) days from the date Customer first accesses the Subscription Service (the "Trial Term"). As it relates to a trial of BrainStorm Content, Customer will be charged a monthly subscription fee at the end of the BrainStorm Content trial, unless Customer cancels that BrainStorm Content subscription.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Survival. Sections 1 and 3-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws and regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content. This section is only applicable if Customer uploads any Customer Content to the BrainStorm Platform.
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 6(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent-pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and 6(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service. If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon purchase of a subscription to the Subscription Service, that new agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective July 29th 2024 to October 25th 2024
DownloadTable of Contents
BRAINSTORM TRIAL TERMS OF SERVICE
Effective Date: November 15, 2022
PLEASE READ THIS AGREEMENT CAREFULLY.
The BrainStorm Trial Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship, and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 4(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of the Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form or Order Form Addendum, as the case may be
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Order Form” means a document provided by BrainStorm to the Customer that includes some or all of the following information related to the Customer's trial: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the fees due from Customer (if any), the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- "Trial Order Form" means an Order Form governing the Customer's use of and access to the Subscription Service during the Trial Term.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Trial Access. Subject to the terms and conditions of this Agreement and the applicable Trial Order Form, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Trial Term, as set forth in the Trial Order Form.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in the original Trial Order Form or for access to the Subscription Service beyond the Trial Term will require a separate purchase(s) and Order Forms and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as set forth in the Trial Order Form. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Term and Termination.
- Trial Term. Customer’s access to the Subscription Service pursuant to this trial shall be set forth in the Customer's Trial Order Form, but for a period of time no longer than forty-five (45) days from the date Customer first accesses the Subscription Service (the "Trial Term"). As it relates to a trial of BrainStorm Content, Customer will be charged a monthly subscription fee at the end of the BrainStorm Content trial, unless Customer cancels that BrainStorm Content subscription.
- Termination for Cause. Either Party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. BrainStorm may also terminate this Agreement for cause on thirty (30) days’ notice if, upon BrainStorm’s reasonable belief, BrainStorm determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BrainStorm, its prospects, or its customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Survival. Sections 1 and 3-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws and regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content. This section is only applicable if Customer uploads any Customer Content to the BrainStorm Platform.
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 6(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent-pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and 6(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, each Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service. If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon purchase of a subscription to the Subscription Service, that new agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in the Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s address set forth in the Order Form.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
BrainStorm CSC Terms of Service
Effective October 25th 2024
DownloadTable of Contents
BRAINSTORM TERMS OF SERVICE
Effective Date: August 23, 2024
PLEASE READ THIS AGREEMENT CAREFULLY.
The BrainStorm Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship, and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 4(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of any Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form.
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Order Form” means a document provided by BrainStorm to the Customer that includes some or all of the following information related to the Customer's access: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the fees due from Customer (if any), the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Term, as set forth in the Order Form.
- No Fee Content. In addition to access granted by any applicable Order Form, BrainStorm also grants access to certain packs, features, or content with no related fees ("No Fee Content"). The packs, features, or content contained in the No Fee Content is subject to change. In the event of such a change, BrainStorm will provide at least thirty (30) days' notice before any changes are made. Access to No Fee Content begins with the Effective Date and terminates with this Agreement independently of any Order Form.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in this Agreement for access to the Subscription Service beyond the Term will require a separate purchase(s) and Order Forms and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as previously agreed. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Term and Termination.
- Term. Customer’s access to the Subscription Service is valid for 30 days ("Term"). At the end of each Term, this Agreement and Customer's access will renew for an additional 30 days unless this Agreement is terminated before the end of the current Term.
- Termination. Either Party may terminate this Agreement upon written notice.
- Survival. Sections 1 and 3-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws and regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content. This section is only applicable if Customer uploads any Customer Content to the BrainStorm Platform.
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 6(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent-pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and 6(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, any Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service. If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon purchase of a subscription to the Subscription Service, that new agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in an Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s email address as provided.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
Effective August 23rd 2024 to October 25th 2024
DownloadTable of Contents
BRAINSTORM TERMS OF SERVICE
Effective Date: August 23, 2024
PLEASE READ THIS AGREEMENT CAREFULLY.
The BrainStorm Terms of Service (this “Agreement”) is a contract between the customer identified in the Order Form (“Customer”), and BrainStorm, Inc. ("BrainStorm”). Sometimes, this Agreement will refer to Customer and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the Subscription Services BrainStorm will provide to Customer, how the Parties will interact, and other aspects of the business relationship between BrainStorm and Customer. BrainStorm will not provide the Subscription Service to Customer unless Customer has agreed to the terms and conditions of this Agreement. By using the Subscription Service, Customer accepts and agrees to be bound by this Agreement.
- Definitions.
- “Agreement” means this Agreement and all materials referred to or linked to herein.
- "BrainStorm Add-Ons” means the individual platform features provided by BrainStorm, as identified and set forth in the Order Form.
- “BrainStorm Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided by BrainStorm to Customer via the Website, as identified and set forth in the Order Form.
- “BrainStorm Material” means all data, text, information, images, audio and video clips, works of authorship, and other content that is created by or for BrainStorm and provided to Customer via the Subscription Service or otherwise.
- “BrainStorm Platform” means the online, cloud-based software application(s) that are provided by BrainStorm to Customer via the Website (as defined below).
- “BrainStorm Support” means the specific customer support services set forth in Section 4(iii) and, if any, the Order Form.
- “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party (the “Discloser”) to the other (the “Receiver”) that is identified at the time of disclosure as confidential. Confidential Information includes, without limitation, Customer Data, any information about the Discloser’s business plans or technical data, and the terms of any Order Form. Except when contradictory to applicable privacy laws and regulations, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, or (iii) is lawfully disclosed to the Receiver by a third party without restriction on disclosure or any breach of confidence. BrainStorm’s Confidential Information includes, without limitation and regardless of whether it has been identified as confidential, (a) any content provided to Customer in connection with the Subscription Service, and (b) any materials or content provided to Customer as part of the implementation services or any other services provided by BrainStorm.
- “Content Specific Terms” means the additional content-related terms that apply to Customer’s subscription to or use of Third-Party Content, as set forth in the Order Form.
- “Customer Data” means all data, Personal Information (as defined below), text, reports, or other information Customer submits to, or BrainStorm collects via the Subscription Service in order to, among other things, create and manage User accounts, track User actions within the Subscription Services, or otherwise deliver the Subscription Service.
- “Customer Content” means all data, text, messages, information, survey responses, images, audio and video clips, works of authorship and other content that is created or originally provided by Customer and/or Users and submitted, uploaded, posted, or displayed on or via the Subscription Service. Customer Content will not include any content prepared or created by or for BrainStorm or that is originally provided to Customer by BrainStorm.
- “De-Identified Usage Data” means the de-identified data and metadata that BrainStorm collects and stores relating to each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or Third-Party software usage data (i.e., Microsoft, Google, Zoom, etc.). De-identified Usage Data does not contain any personally identifiable information about Users, the identity of Customer, Customer Data or Customer Content.
- “Order Form” means a document provided by BrainStorm to the Customer that includes some or all of the following information related to the Customer's access: a listing of the BrainStorm Platform, BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content to be provided by BrainStorm to Customer, the name of Customer, Customer’s address and billing information, the length of the Subscription Term (if applicable), the fees due from Customer (if any), the maximum number of Users authorized to access and use the Subscription Service, and any maintenance and support being purchased (if applicable).
- “Personal Information” means any information or data relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
- “Subscription Service” means the BrainStorm Platform, BrainStorm Content, BrainStorm Material, BrainStorm Add-ons and/or any Third-Party Content (as defined below) that are provided to Customer via the Website, including any ancillary products or services, including web-hosting, that BrainStorm will provide to Customer.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Union data protection laws as “Sensitive Personal Data.
- “Third-Party Providers” means third-party content vendors who sell Third-Party Content and/or collect Third-Party Data via the BrainStorm Platform.
- “Third-Party Content” means the individual Packs or Bundles (as identified in the BrainStorm Platform) of video content, email templates, flows, polls, assessments, and other supporting components provided and sold by third parties to Customer via the Website, as identified and set forth in the Order Form.
- “Third-Party Data” means the data and metadata that Third-Party Providers collect regarding each customer’s use of the Third-Party Content, including, without limitation, content usage statistics, diagnostic data, telemetry data, and/or software usage data of that third party.
- “Usage Data” means the data and metadata that BrainStorm collects and stores for each customer’s use of the Subscription Services, including, without limitation, platform and content usage statistics, diagnostic data, telemetry data, and/or third-party software usage data (i.e., Microsoft, Google, Zoom, etc.).
- “Users” means individuals who are authorized by Customer to access and use the Subscription Service and who have been supplied user identifications and login credentials by Customer (or by BrainStorm at Customer’s request). Users may include employees, consultants, contractors, and agents of Customer.
- “Website” means the following websites where Customer and its Users will access and use the Subscription Service: app.brainstorminc.com; admin.brainstorminc.com; sts.brainstorminc.com; help.brainstorminc.com; api.brainstorminc.com; support.brainstorminc.com; feedback.brainstorminc.com, and any other URLs from which BrainStorm will provide the Subscription Service, in whole or in part.
- The Subscription Service.
- Access. Subject to the terms and conditions of this Agreement and the applicable Order Form, BrainStorm will provide Customer and its Users with access to the Subscription Service via the Internet during the Term, as set forth in the Order Form.
- Additional Purchases. Access to additional BrainStorm Content, BrainStorm Add-ons, or Third-Party Content not set forth in this Agreement for access to the Subscription Service beyond the Term will require a separate purchase(s) and Order Forms and may be governed by separate or additional terms and conditions, such as Content Specific Terms.
- Maximum Authorized Users. The Subscription Service may not be accessed or used by more than the maximum number of Users, as previously agreed. User accounts cannot be shared or used by more than one User. Customer may, however, reassign a former User’s account to a new User. The maximum number of Users cannot be decreased during the Subscription Term.
- In-Product Marketing. Customer acknowledges that the BrainStorm Platform contains a marketplace for Customer to purchase additional BrainStorm Content, BrainStorm Add-ons, and/or Third-Party Content (the “Marketplace”). Customer consents to BrainStorm sending those Users who Customer designates in the Subscription Service as admins or group owners in-product marketing communications and BrainStorm Platform-generated messages in order to notify the Customer about the Marketplace.
- Content Specific Terms. Customer also acknowledges that a purchase of BrainStorm Content or Third-Party Content may require the acceptance of Content Specific Terms.
- Term and Termination.
- Term. Customer’s access to the Subscription Service is valid for 30 days ("Term"). At the end of each Term, this Agreement and Customer's access will renew for an additional 30 days unless this Agreement is terminated before the end of the current Term.
- Termination. Either Party may terminate this Agreement upon written notice.
- Survival. Sections 1 and 3-15 and any other terms in this Agreement which by their nature must survive after the Subscription Term to give their intended effect will survive any termination or expiration of this Agreement.
- Updates, Changes, and Support.
- Updates and Maintenance. BrainStorm will support, maintain, upgrade, and update the Subscription Service as appropriate and in BrainStorm’s sole determination in order to fulfill its obligations under this Agreement. By way of information, BrainStorm's scheduled maintenance window is from 12:00 a.m. to 4:00 a.m. Mountain Time. Except as provided elsewhere in this Section 4 or as specifically agreed in an Order Form, BrainStorm shall have no other maintenance or support obligations to Customer.
- Changes. BrainStorm reserves the right to, but not the obligation to, change, remove, edit, modify, block or deprecate BrainStorm Content or certain features or functionality of the BrainStorm Platform, in its sole discretion, at any time, without notice to Customer and for any reason or no reason at all. BrainStorm will, in its sole discretion, continue supporting prior versions of the BrainStorm Platform for up to twelve (12) months after BrainStorm provides notice of its intent to deprecate the prior version(s), except where doing so would (a) pose a security risk or intellectual property issue, (b) be economically or technically burdensome, or (c) violate applicable law. BrainStorm will notify Customer of any material change to or discontinuation of a prior version of the BrainStorm Platform.
- Support. In addition to the ongoing customer service support that BrainStorm will provide as described in Section 4(a), BrainStorm will provide technical support to Customer during the Subscription Term during normal business hours of 8:00 a.m. - 6:00 p.m. MST, Monday through Friday, excluding holidays. Support is limited to the designated admins within the Subscription Service and is generally not available to Customer’s Users. Customer’s point of contact may reach the support helpdesk at support@brainstorminc.com.
- Customer Responsibilities and Restrictions. Customer agrees that:
- It and its Users will comply with the terms and conditions of this Agreement, as well as any applicable laws and regulations. Customer will promptly notify BrainStorm of any suspected or alleged violation of this Agreement by its Users and will cooperate with BrainStorm in its efforts to (a) investigate any alleged or suspected violation of this Agreement and (b) enforce this Agreement.
- It will be responsible for its and its Users’ use of the Subscription Service, including, without limitation, any use of the Subscription Service that is in violation of applicable laws and regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of all Customer Data.
- It will not (a) access or use the Subscription Service except as expressly permitted by this Agreement, (b) make the Subscription Service available to anyone other than Customer’s Users, (c) copy, modify, sell, resell, distribute, rent, lease, or create derivative works of the Subscription Service, except as may be authorized in writing by BrainStorm, (d) interfere with or disrupt the integrity or performance of the Subscription Service or any of its content, (e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to gain unauthorized access to the Subscription Service’s underlying systems or networks, or (f) access or use the Subscription Service for purposes of competitive analysis of the Subscription Service, the development, provision or use of a competing software service or product or any other purpose that is to BrainStorm’s detriment or commercial disadvantage.
- It will not access and use the Subscription Service if Customer is a direct competitor or is affiliated with a direct competitor of BrainStorm.
- It will not use or access the Subscription Service if Customer is legally prohibited from receiving or using the Subscription Service under the laws of the country in which Customer is a resident or from which Customer will access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as HIPAA, the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so Customer may not use the Subscription Service or upload Customer Data to the Subscription Service where Customer’s use would be subject to such laws.
- IT WILL NOT USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION, AND WILL NOT PROVIDE ANY SENSITIVE INFORMATION TO BRAINSTORM VIA THE SUBSCRIPTION SERVICE. BRAINSTORM WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICE WAS NOT DESIGNED OR INTENDED TO PROCESS OR MANAGE SENSITIVE INFORMATION.
- The Subscription Service constitutes the proprietary information and trade secrets of BrainStorm or its licensors, and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent.
- BrainStorm may disclose Customer’s name, whether in written or oral form, in a factual listing of BrainStorm’s Customers to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on BrainStorm’s external website and/or to financial and industry analysts
- Data and Content
- Privacy Policy. Customer acknowledges that BrainStorm will process Customer Data as described in BrainStorm’s Privacy Policy, located at https://legal.brainstorminc.com.
- Safeguards. BrainStorm will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. Customer consents to the processing of Customer Data in the United States.
- Ownership of Customer Data. As between the Parties, Customer owns and retains all rights to Customer Data. BrainStorm will use Customer Data only in order to provide the Subscription Service to Customer and only as permitted by applicable law, this Agreement, the Data Processing Addendum (if applicable), and BrainStorm’s Privacy Policy.
- BrainStorm License to Customer Data. By importing or processing Customer Data in the Subscription Service, Customer hereby grants BrainStorm a worldwide, non-exclusive, royalty-free, license to reproduce, distribute, modify, and adapt Customer Data for the sole purpose of providing the Subscription Service and otherwise performing under this Agreement, including the right to disclose Customer Data to BrainStorm’s sub-processors. BrainStorm will not use, display, disclose or transfer Customer Data without Customer’s prior written consent, except as otherwise set forth in this Agreement or in BrainStorm's Privacy Policy.
- De-identified Usage Data. As between the Parties, BrainStorm solely and exclusively owns all rights to any De-Identified Usage Data and, therefore, reserves the right, in its discretion, to use and/or aggregate any De-Identified Usage Data collected by BrainStorm for any purpose, including, without limitation, to (i) test, maintain, improve, and/or otherwise provide the Subscription Services, or (ii) produce, share, and/or sell the De-Identified Usage Data to Third Parties.
- Sharing Data with Third Parties. Customer hereby consents to BrainStorm’s aggregation and sharing of Customer’s Usage Data with Third-Party Providers from whom Customer has purchased Third-Party Content. Notwithstanding any provisions to the contrary, Customer hereby grants BrainStorm and any such Third-Party Provider with an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide right and license, with the right to sublicense, use, reproduce, publish, distribute, perform, aggregate, anonymize, and display, both during and after the Term, Customer’s Usage Data that is derived from Customer’s or its Users’ use of the Subscription Service; provided, however, that BrainStorm and/or the Third-Party Provider will only use the Usage Data in accordance with any applicable laws (without limitation, data privacy laws).
- EU/EEA and Switzerland Data Processing. To the extent that BrainStorm processes any Personal Data (as defined by the BrainStorm Data Processing Agreement) as part of Customer Data that is subject to the General Data Protection Regulation, on Customer’s behalf, in the provision of the Subscription Service hereunder, the terms of the BrainStorm Data Processing Agreement, located at https://legal.brainstorminc.com, which are hereby incorporated by reference, will apply. For Customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission and attached to the BrainStorm Data Processing Agreement, which provide adequate safeguards with respect to the Personal Data processed by BrainStorm under this Agreement and pursuant to the provisions of the BrainStorm Data Processing Agreement, will apply. Customer acknowledges in all cases that BrainStorm acts as the data processor of Customer Data and that Customer is the data controller of Customer Data under all applicable data protection laws or regulations. Customer represents and warrants that, to the extent required, it has a lawful basis for the processing of Personal Data. Customer also agrees to obtain and maintain any consents necessary to permit the processing or cross-border transfer of Customer Data under this Agreement. To the extent that there is any conflict or discrepancy between this Agreement and the BrainStorm Data Processing Agreement, the latter will control.
- Customer Content. This section is only applicable if Customer uploads any Customer Content to the BrainStorm Platform.
- Ownership of Customer Content. By providing Customer Content to BrainStorm via the BrainStorm Platform, Customer represents and warrants that Customer or its licensors own or control all rights in and to the Customer Content and that Customer has the right to grant the licenses granted below to BrainStorm. As between the Parties, Customer owns all right, title, and interest in and to the Customer Content submitted to, uploaded to, or created in the BrainStorm Platform, including all intellectual property and proprietary rights therein. Except as set forth herein, BrainStorm acquires no right, title, or interest from Customer in or to Customer Content. Customer Content shall be considered “Confidential Information” and shall be subject to the confidentiality restrictions contained in the Agreement.
- Content Submission. The BrainStorm Platform provides Customer the ability to post, upload, submit, publish, display, or transmit Customer Content on or through the BrainStorm Platform, which can be displayed to and used by Customer and its Users. Customer is responsible for any Customer Content submitted or contributed to the BrainStorm Platform by any of its Users, and Customer is fully responsible for such content and Customer’s and Users’ use of such content, including without limitation its legality, reliability, accuracy, and appropriateness. BrainStorm is not responsible or liable for the content or accuracy of any Customer Content posted by Customer or any of its Users. Customer agrees not to upload any Customer Content to the Subscription Service that (i) violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export or transfer of data or software to and from the US or other countries), including but not limited to, copyright and trademark laws and data privacy laws, (ii) does not comply with the Content Standards, (iii) introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, or attempts to gain unauthorized access to any parts of the Cloud Service, or (iv) otherwise interferes with the proper working of the Subscription Service.
- BrainStorm License to Customer Content. Solely for the purpose of, and only to the extent necessary for BrainStorm to perform its obligations under the Agreement, Customer hereby grants to BrainStorm a worldwide, assignable, sublicensable, royalty-free, revocable license during the Term to display, perform, reproduce, distribute, transmit, broadcast, create Derivatives of, provide User access to, and otherwise use the Customer Content and any Derivatives. For purposes of this Agreement, the term “Derivatives” of any subject matter shall mean and include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
- Customer Content Standards. All Customer Content must comply with the following standards (the “Content Standards”): Customer Content must not (i) contain any material that is defamatory, abusive, harassing, violent, hateful, inflammatory, or otherwise objectionable, (ii) promote or contain any sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (iii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, (iv) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement, (v) be likely to deceive any person or impersonate any person, or misrepresent Customer’s or any User’s identity or affiliation with any person or organization, (vi) promote any illegal activity, or advocate, promote, or assist any unlawful act, (vii) involve commercial activities, advertising or sales, such as contests, sweepstakes and other sales promotions, or (viii) give the impression that the Customer Content emanates from or is endorsed by BrainStorm or any other person or entity.
- Violations. Violations of this Section 6(h) may, in BrainStorm’s sole discretion, result in the suspension of Customer’s access to the Subscription Service or termination of the applicable Order Form or the Agreement entirely.
- BrainStorm’s Proprietary Rights.
- Reservation of Rights. This is an Agreement for access to and use of the Subscription Service, and Customer is not granted a license to any software by this Agreement, or any other intellectual property right, other than the limited rights and licenses specified in this Agreement. The Subscription Service, and its associated code, content, etc., is protected by intellectual property laws and, as between the Parties, belongs to and is the property of BrainStorm and its licensors (if any), and BrainStorm and its licensors retain all ownership rights therein.
- Copyrights, Trademarks, and Patents. The Subscription Service is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance is Customer permitted to remove any copyright notice from the Subscription Service. “BrainStorm” is either a registered trademark or trademark of BrainStorm in the United States and/or other countries. One or more patents, as well as other patent-pending technology, may apply to the Subscription Service.
- Suggestions. BrainStorm encourages all customers to provide comments, feedback, and suggestions to improve, correct, change, or modify the Subscription Service or its operation (“Suggestions”). Customer agrees that all such Suggestions will be non-confidential and that BrainStorm will own all rights to use and incorporate such Suggestions into the Subscription Service, without payment or attribution to Customer. Any Suggestions incorporated into the Subscription Service shall not contain any Customer Data.
- Confidentiality. Each Party (as a Receiver) agrees to hold the other’s (as a Discloser) Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees, subcontractors, advisers, and/or agents that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Indemnification.
- Indemnification. Each Party (each, an “Indemnifying Party”) agrees to defend the other Party (each, an “Indemnified Party”) from and against any claims, demands, suits, or proceedings (each, a “Claim”) made or brought by a third party against the Indemnified Party alleging that material provided by the Indemnifying Party (the BrainStorm Platform and BrainStorm Content, in the case of BrainStorm as the Indemnifying Party, and Customer Data, in the case of Customer as the Indemnifying Party) infringes or misappropriates the intellectual property rights of a third party or arising out of a failure by Customer to comply with Sections 5 and 6(h) and to indemnify the Indemnified Party from any damages finally awarded by a court of competent jurisdiction against the Indemnified Party or amounts agreed to in settlement in connection with any such Claim. The Indemnifying Party’s obligations under this paragraph will only apply to the extent that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing of the Claim, provided that failure to give or delay in giving such notice to the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby; (b) the Indemnifying Party has control of the defense and all related settlement negotiations relating to the Claim, provided, however, the settlement of any Claim will not be made without advance written permission of the Indemnified Party, which will not be unreasonably withheld; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information and authority reasonably necessary to perform the above. In no event will BrainStorm have any obligation or liability under this paragraph for any Claim or action under any legal theory to the extent that the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Subscription Service with software or other materials not supplied by BrainStorm, (ii) any alteration or modification of the Subscription Service by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) the actions or omissions of any person or entity other than BrainStorm, or (v) Customer’s failure to comply with Section 6(h).
- Remedy for Infringement. Should Customer’s right to use the Subscription Service pursuant to this Agreement be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion, (i) procure for Customer the right to continue to access and use the Subscription Service; (ii) modify the Subscription Service to render it non-infringing but substantially functionally equivalent to the Subscription Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then BrainStorm may terminate this Agreement and refund to Customer any amounts prepaid by Customer for the Subscription Service for the unused portion of the Subscription Term.
- Warranties.
- Customer Warranties. When Customer shares Customer Data with BrainStorm or uploads Customer Data to the Subscription Service, Customer represents and warrants that it is the creator and owner of, or that Customer has the necessary licenses, rights, consents, and permissions to use and to authorize BrainStorm to use and distribute the Customer Data as necessary for BrainStorm and its licensors to provide Customer with access to and use of the Subscription Service and to otherwise perform its obligations under this Agreement.
- DISCLAIMER. THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BRAINSTORM DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRAINSTORM’S INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, BRAINSTORM’S CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $1,000. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRAINSTORM HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BRAINSTORM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- THIRD-PARTY CONTENT. BRAINSTORM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT THAT CUSTOMER PURCHASES FROM THE MARKETPLACE. BRAINSTORM'S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH COURTS. REGARDLESS OF THE APPLICABLE GOVERNING LAW, CUSTOMER AND BRAINSTORM AGREE TO EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, BRAINSTORM MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT OR (B) PROTECTING BRAINSTORM’S OR ANY THIRD-PARTY PROVIDER'S INTELLECTUAL PROPERTY RIGHTS. In the event that a Party who engages the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, such Party will be entitled to the reimbursement by the other Party of all reasonable attorneys’ fees and court costs incurred by the successful Party.
- Miscellaneous.
- Entire Agreement. This Agreement, any Order Form, the Data Protection Addendum (if applicable), and the BrainStorm Privacy Policy together constitute the entire agreement between the Parties for the provision of and access to the Subscription Service, and supersede all other proposals and agreements, whether electronic, oral or written, between the Parties. BrainStorm objects to and rejects any additional or different terms proposed by Customer, including those contained on Customer’s purchase order, acceptance, or website.
- Amendment; No Waiver. BrainStorm may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service. If BrainStorm makes a material update or change to these terms and conditions, BrainStorm will provide notice via email and/or in-app notification. The updated Agreement will become effective and binding on the effective date indicated at the top of the updated Agreement. If Customer does not agree with a modification to this Agreement, Customer must notify BrainStorm in writing within thirty (30) days after receiving notice of the modification. If Customer gives this notice, Customer’s subscription will continue to be governed by the terms and conditions of this Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon purchase of a subscription to the Subscription Service, that new agreement, as published on BrainStorm’s website, will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Customer may not assign, sublicense, or transfer this Agreement, Customer’s access to the Subscription Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of BrainStorm. Any such purported assignment, sublicense, or transfer will be null and void. BrainStorm may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer by providing Customer with written notice.
- Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its terms.
- No Third-Party Beneficiaries. Unless otherwise specifically agreed to in an Order Form or any Content Specific Terms, Customer agrees that there will be no third-party beneficiaries to this Agreement.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.
- Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- Notice. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
- If to BrainStorm: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, Attn: Legal Department
- To Customer: Customer’s email address as provided.
- BrainStorm may give electronic notices by general notice via the Subscription Service Admin Portal to the designated admin accounts, via email to Customer’s e-mail address(es) on record with BrainStorm, or as otherwise agreed. Customer must keep all of its account contact information current.
- Injunctive Relief. Customer hereby expressly agrees that BrainStorm, in addition to any other rights or remedies that BrainStorm may possess, will be entitled to seek injunctive and other equitable relief (including specific performance) without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
- Service Supplied to the Government. The Subscription Service is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Subscription Service by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
- Export Law Assurances. Customer will not export or re-export or allow the export or re-export of the Subscription Service or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
- Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by such Party of any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement or failure to perform by the other Party will not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.