BREINIFY MASTER SUBSCRIPTION AGREEMENT


Last Updated: November 16, 2016

This Master Subscription Agreement (“Agreement”) is between Breinify Inc. (“Breinify”) and the customer (individual or entity) that has purchased a subscription to the Breinify Service or is otherwise registering for the Breinify Service (“Customer”). If you are an individual registering for, or otherwise accessing or using, the Breinify Service on behalf of an entity, then that entity will be the Customer, and you and customer represent and warrant that you have the full right and authority to enter into this Agreement on behalf of such entity and bind such entity to the terms and conditions of this Agreement, and that customer is fully aware of, understands, and agrees to be bound by all the terms and conditions of this agreement.

BY USING ANY ELEMENT OF THE BREINIFY SOLUTION (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, UNDERSTANDS, AND HEREBY ACCEPTS TO BE BOUND BY THIS AGREEMENT. CUSTOMER REPRESENTS AND WARRANTS: (I) THAT CUSTOMER CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW; (II) THAT CUSTOMER HAS NOT PREVIOUSLY BEEN SUSPENDED OR REMOVED FROM THE BREINIFY SERVICE; AND (III) THAT CUSTOMER’S REGISTRATION AND USE OF THE BREINIFY SERVICE IS IN COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS. IF CUSTOMER DOES NOT QUALIFY FOR THE BREINIFY SERVICE, OR DOES NOT AGREE TO THIS AGREEMENT, THEN CUSTOMER SHOULD NOT AND MAY NOT REGISTER FOR, ACCESS, OR USE THE BREINIFY SERVICE.

1. SERVICES

1.1 Breinify Service; Order Forms. Breinify offers a web-based service available at www.breinify.com that, among other things, analyzes end-user activity on customers’ websites, applications, and other digital properties (the “Breinify Platform”). This Agreement will govern Customer’s use of the Breinify Platform and any associated Integration Code or related code, APIs, documentation, and other technology that Breinify provides to Customer in connection with Customer’s use of the Breinify Platform hereunder (collectively, the “Breinify Service”), as described in one or more order forms (whether written, online, or electronic) issued or accepted by Breinify under this Agreement (each, an “Order Form”). Each Order Form will describe, among other things, the purchased features and subscription level of, duration of access to, and Fees payable in respect of, the Breinify Service. Each Order Form is hereby incorporated into, and made a part of, this Agreement.

1.2 Use of Breinify Service.

  • 1.2.1 Breinify Platform. Subject to Customer’s ongoing compliance with this Agreement (including timely payment of all Fees), Breinify grants Customer a non-exclusive, non-transferable right: (i) to access and use the Breinify Service (other than the Integration Code) subject to any usage metrics and restrictions identified on the applicable Order Form; and (ii) to use the Breinify Data provided by Breinify to Customer hereunder (including through the Breinify Platform), in each case of (i) and (ii) solely for Customer’s internal business purposes as authorized by this Agreement and in accordance with the applicable documentation and intended functionality of the Breinify Service and solely during the corresponding Subscription Term. Customer is solely responsible for obtaining and configuring all required computer hardware, software and telecommunications services to access the Breinify Service as authorized hereunder.
  • 1.2.2 Integration Code. Breinify may provide to Customer one or more code libraries and code snippets (including scripts) for inclusion in Customer-owned or Customer-controlled digital properties, including websites and applications, identified on the applicable Order Form (“Customer Digital Properties”) to facilitate Customer’s use of the Breinify Service (such code provided by Breinify, the “Integration Code”). Subject to Customer’s ongoing compliance with this Agreement, Breinify hereby grants Customer a limited, revocable, non-exclusive, non-transferable, nonsublicensable license to install the Integration Code in the Customer Digital Properties solely for the internal business purpose of enabling the Breinify Service to receive data from, or transmit data to, such Customer Digital Properties during the applicable period of time specified in the applicable Order Form or otherwise by Breinify (whichever is shorter) and solely in accordance with the applicable documentation and intended functionality of the Integration Code. Digital properties on which Customer has installed or caused to be installed the Integration Code, as well as any other properties that Customer causes or permits to transmit data to, or receive data from, the Breinify Service, shall be deemed the “Customer Properties.” For clarity, Customer shall not disclose or provide access to the Integration Code or any copies thereof to any third party without Breinify’s prior written consent, and promptly upon completion of the authorized use period or Breinify’s request at any time, Customer shall cease all use of the Integration Code, remove all instances of the Integration Code from the Customer Properties, and delete all copies of the Integration Code in its possession or control. Breinify shall not be responsible for any failure or delay in its provision of the Breinify Service resulting from Customer’s failure to properly and timely install the Integration Code or to timely provide adequate Customer Data to Breinify.

1.3 Restrictions. Except as expressly permitted herein and to the maximum extent permitted by applicable law, Customer shall not, and shall not permit any person to, directly or indirectly: (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any elements of; (ii) copy, reproduce, distribute, display, publish, disclose, translate, adapt, or modify; (iii) write or develop any program based upon or that duplicates the functionality of; (iv) sell, sublicense, transfer any rights in, use for the benefit of, or allow access to, unauthorized persons to; (v) transmit unlawful, infringing or harmful data or code to or from; or (vi) otherwise use except as expressly permitted hereunder, in each case of (i) through (vi), the Breinify Service (including all technology constituting or used to provide such service) or Breinify Data, as applicable. For clarity and without limiting the foregoing, Customer may not access or use, or provide third parties access to, the Breinify Service (including any portion thereof) except as authorized herein and by the applicable Order Form.

2. FEES; PAYMENT

2.1 Payment Terms. The recurring subscription fees and one-time fees payable to Breinify are as set forth on the applicable Order Form (“Fees”) and Customer shall pay Breinify the Fees in the manner specified by such Order Form. Unless otherwise set forth on the applicable Order Form, Customer shall pay all Fees within 30 days of the date of the applicable invoice issued by Breinify. Customer acknowledges and agrees that its payments may be processed by a third-party payment processor of Breinify and Breinify may share Customer’s billing and payment information with payment processors and/or credit agencies for the purpose of checking credit, effecting payment to Breinify, and servicing Customer’s account. Except as explicitly set forth in the applicable Order Form, all Fees are non-refundable, provided that Customer may be given a refund of the unused portion of applicable Fees paid in advance by Customer if Breinify permanently discontinues the Breinify Service in its entirety or terminates the Agreement or Order Form for convenience under Section 3.2. If any Fees are past due, Customer agrees to pay a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is greater. All Fees are due and payable in U.S. dollars unless otherwise set forth on the applicable Order Form.

2.2 Taxes. Customer must pay all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Breinify’s net income).

3. TERM AND TERMINATION

3.1 Term. Each Order Form shall specify the applicable initial subscription term, which, unless otherwise set forth on the Order Form, will automatically renew for 1-year periods unless Breinify or Customer provide 30 days’ notice of its intent not to renew prior to the expiration of the then-current term (together, the “Subscription Term”). This Agreement is effective as of the initial date on which Breinify makes the Breinify Service available to Customer, and expires on the date of expiration or termination of the last Subscription Term.

3.2 Termination by Breinify. Breinify may terminate this Agreement or any Order Form by written notice if: (i) Customer fails to pay within 10 days after written notice of nonpayment any amounts owed Breinify; (ii) Customer is otherwise in material breach of this Agreement, which is not cured within 30 days after written notice of such breach; or (iii) Customer files for or is adjudicated bankrupt or suffers any analogous event. Breinify may otherwise terminate this Agreement or any Order Form for convenience upon 30 days’ written notice to Customer.

3.3 Termination by Customer. Customer may terminate this Agreement or any Order Form at any time upon 30 days’ written notice to Breinify, provided that no refund of Fees already paid by Customer will be provided and all Fees that would have been due by Customer to Breinify throughout the remaining then-current Subscription Term if such termination had not taken place shall immediately become payable in full by Customer to Breinify.

3.4 Effect of Termination. Upon the effective date of expiration or termination of an Order Form for any reason: (i) Customer's access to the Breinify Service under such Order Form will terminate; (ii) Customer will immediately cease all use of the Breinify Service and Breinify Confidential Information and will return or destroy (at Breinify’s option) all tangible copies of the Breinify Service and Breinify Confidential Information then in its possession or control; and (iii) all outstanding payment obligations of Customer under such Order Form become due and payable immediately. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.3, 2, 3.4, and 4 through 8.

4. CONFIDENTIALITY

4.1 Definition. “Confidential Information” means any information disclosed directly or indirectly by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement that is either designated as “confidential” or under the circumstances of disclosure or by the nature of the information itself is reasonably understood by the Receiving Party to be the confidential information of the Disclosing Party. Confidential Information does not include any information which (i) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (ii) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (iii) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (iv) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. As between Breinify and Customer, the Breinify Data and all other information related to the Breinify Service are the Confidential Information of Breinify, and the Customer Data is the Confidential Information of Customer. The pricing terms (but not the existence) of this Agreement are Breinify’s Confidential Information.

4.2 Use; Maintenance. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other party, except to employees of the Receiving Party (and, in the case of Breinify as the Receiving Party, to contractors) with a need to know, or to its advisors, or prospective investors or purchasers, in each case subject to a written obligation of confidentiality at least as protective as the terms hereof and for use solely on behalf of the Receiving Party consistent with the Receiving Party’s authorized use hereunder. Each party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other party, and will take at least those measures that it takes to protect its own most highly confidential information. A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party’s Confidential Information, and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment. Breinify may list Customer as a customer in its promotional and marketing materials and on its website.

5. OWNERSHIP

5.1 Ownership. “Customer Data” means the raw data that is: (i) input, transmitted, or uploaded into the Breinify Service by Customer; (ii) collected or received by, or transmitted to, Breinify (including through the Breinify Service) from all Customer Properties; or (iii) otherwise made available to Breinify by or on behalf of Customer. Except for the limited rights granted in this Agreement, as between Customer and Breinify: (i) Customer hereby retains all rights, title and interest in and to the Customer Data; and (ii) Breinify hereby retains all rights, title and interest, including all intellectual property rights, in and to the Breinify Service (including all technology constituting or used to provide such service and all updates, modifications, enhancements, and improvements thereto) and, other than Customer Data, all data produced, generated, obtained, or provided by Breinify or the Breinify Service or otherwise used in connection with the Breinify Service (collectively, “Breinify Data”).

5.2 License. Customer hereby grants to Breinify and its affiliates a worldwide, nonexclusive right to use all Customer Data in connection with its provision of the Breinify Service to Customer. Customer hereby grants to Breinify and its affiliates a worldwide, irrevocable, perpetual, transferable, sublicensable, royalty-free license and right (i) to exploit without restriction all feedback related to Breinify’s current or future products and services, including the Breinify Service, or the Breinify Data; and (ii) to use all log data and other information derived from Customer’s use of the Breinify Service, as well as Customer Data in de-identified form, for its business purposes, including to provide and improve Breinify’s products and services and to perform its obligations hereunder.

5.3 Data Restrictions and Requirements. Breinify may remove or restrict access to the Breinify Data if: (i) providing access may violate applicable law, (ii) the source of such data becomes unavailable, or (iii) a third party brings or threatens legal action. Customer shall be solely responsible for ensuring that the Customer Properties and Customer’s use of the Breinify Service (including its provision of Customer Data to Breinify through the Integration Code and any other provision or transmittal of Customer Data to Breinify by Customer or on Customer’s behalf) comply with all applicable laws, rules, regulations, industry self-regulatory regimes and third-party contracts, terms and policies, including relating to the collection, use and disclosure of Customer Data as contemplated by this Agreement. Customer represents and warrants that it has and will obtain and maintain all consents, permissions, clearances, and, approvals (including from each source of Customer Data), and provides adequate and appropriate notice and opt-out options to users of the Customer Properties, as may be necessary or required: (i) to provide and transmit such data to Breinify as contemplated by this Agreement, including in connection with the provision of the Breinify Service; (ii) to comply with, and enable Breinify to comply with, all applicable laws, rules, and regulations in their respective performances under this Agreement; and (iii) for Breinify to exercise all its rights under this Agreement. Customer further represents and warrants that it has all rights necessary to collect and transmit, and to permit Breinify to collect and receive, Customer Data as contemplated by this Agreement, including in relation to the Customer Properties, and to install (or have installed) and use the Integration Code in connection with the Customer Properties on which Customer installs or has installed such Integration Code. Notwithstanding anything to the contrary, Customer must not (and must not configure or use the Integration Code to) provide, transmit, or otherwise make available to Breinify (including through the Breinify Service) any Customer Data that is health information, medical information, information regarding children under 13 years of age, or any other information that Breinify identifies from time to time. As between Breinify and Customer, Customer is solely responsible for the Customer Properties, including all features, data, content and other materials included in, made available in or transmitted from the Customer Properties. Breinify will not be liable to Customer or any third party for any harm related to, arising out of, or caused by the use or storage by Breinify in accordance with this Agreement of any Customer Data. Customer agrees that nothing in this Agreement or any suggestions, edits or proposed language provided by Breinify relating to user or data source notices, consents, terms or otherwise shall constitute legal advice and that you shall obtain the independent advice of counsel in connection therewith.

6. INDEMNIFICATION

Customer shall indemnify, defend and hold harmless Breinify and its affiliates and their respective directors, officers, employees, agents, and contractors from and against any liabilities, damages, or expenses (including reasonable attorneys’ fees) arising in connection with any claim, demand, action, or proceeding initiated by a third party arising out of or relating to (i) the alleged or actual breach of Section 5.3 or any Customer representation or warranties in this Agreement, (ii) the Customer Properties, including any actual or alleged violation of any applicable privacy policies or third-party terms, (iii) Customer’s installation or use of the Integration Code and any other access to or use of the Breinify Service, or (iv) the Customer Data, including allegations that the use by or on behalf of Breinify in accordance with this Agreement of the Customer Data infringes, violates or misappropriates any third party’s rights, including privacy rights, or violates applicable laws; in each case provided that Breinify provides Customer with (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) at Customer’s expense, all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim, demand, action, or proceeding. Breinify may appear, at its own expense and through counsel of its choosing.

7. DISCLAIMER; LIMITATION OF LIABILITY

7.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BREINIFY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING OR RELIANCE. FOR THE AVOIDANCE OF DOUBT, BREINIFY MAKES NO WARRANTIES (I) THAT THE BREINIFY SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, (II) THAT ITS SECURITY MEASURES WILL PREVENT UNAUTHORIZED THIRD PARTY ACCESS TO CUSTOMER DATA, (III) CONCERNING THE ACCURACY, RELIABILITY, QUALITY, OR SUITABILITY OF RECOMMENDATIONS OR ANALYSIS PROVIDED BY THE BREINIFY SERVICE. BREINIFY WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT CUSTOMER MAY SUFFER ARISING OUT OF CUSTOMER’S USE OF, INABILITY TO USE, OR RELIANCE UPON THE OUTPUT OF, THE BREINIFY SERVICE, AND CUSTOMER USES OR RELIES UPON SUCH OUTPUT AT CUSTOMER’S OWN RISK.

7.2 Limitation of Liability. EXCEPT WITH RESPECT TO A PARTY’S OBLIGATIONS UNDER SECTION 6 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER’S OBLIGATIONS UNDER SECTIONS 2 (FEES; PAYMENT) AND 6.3 (INDEMNIFICATION), NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THE LIMITATIONS SET FORTH IN THIS SECTION 7.2 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

8. GENERAL PROVISIONS

8.1 Assignment. Customer may not assign, by operation of law or otherwise, this Agreement nor any of its rights or obligations under this Agreement without the prior written consent of Breinify, including in connection with a corporate reorganization, change of control, consolidation, merger, reincorporation, sale of assets, or other similar transaction or series of transactions. Breinify may assign this Agreement without the written consent of Customer. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.

8.2 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet. The delayed party shall give the other party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.

8.3 Modification of this Agreement. Breinify reserves the right, at its discretion, to modify this Agreement on a going-forward basis at any time, with or without prior notice, and such changes will be effective in accordance with the following. In the case of material changes to this Agreement, Breinify will make reasonable efforts to notify Customer of the change, such as through sending an email to any address Customer may have used to register for an account, through a notice displayed on the Breinify Service, or other similar mechanism. The modifications to the Agreement will be effective upon the earlier of (i) Customer’s first use of the Breinify Service with actual notice of such change, or (ii) 30 days from posting of such change on Breinify’s website or within the Breinify Service. Customer’s use of the Breinify Service following the date that any such change becomes effective constitutes Customer’s agreement to be bound by the modified Agreement. If Customer does not agree to the modified Agreement, Customer’s sole and exclusive remedy is to terminate Customer’s account and all Order Forms and Customer may no longer use the Breinify Service. Disputes arising under this Agreement will be resolved in accordance with the version of the Agreement that was in effect at the time the dispute arose. Except as set forth in this Section 8.3, this Agreement may not be amended or modified unless mutually agreed to in writing by the parties.

8.4 Evolving Nature of the Breinify Service. Breinify reserves the right, at its discretion, to change, modify, add, remove, or discontinue the Breinify Service, in whole or in part, at any time without liability or notice to Breinify. If Customer is at any time dissatisfied with the Breinify Service, including any changes or modifications thereto, Customer’s sole remedy is to discontinue use of the Breinify Service. However, Breinify does want to hear from its customers so do not hesitate to send Breinify an email at support@breinify.com to let Breinify know what you think.

8.5 Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles. To the extent that any lawsuit or court proceeding is permitted hereunder, disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and the parties hereby agree and consent to the exclusive jurisdiction and venue of these courts.

8.6 Notices. Any notice given by Customer that is required or permitted under the terms of this Agreement or required by law must be in writing and must be (i) delivered in person, (ii) sent by first class registered mail, or air mail, as appropriate, or (iii) sent by overnight air courier, properly posted and fully prepaid, in each case of (i) through (iii) to Breinify Inc., 21880 Rucker Drive, Cupertino, CA 95014. Customer consents to receive certain electronic communications from Breinify as further described in the Breinify Privacy Policy. Customer agrees that any notices, agreements, disclosures, or other communications that Breinify sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, 3 business days after deposit in the mail as set forth above, or 1 day after delivery to an overnight air courier service.

8.7 Privacy Policy; Additional Terms. The Breinify Privacy Policy is hereby incorporated by reference into, and made a part of, this Agreement. Customer’s use of the Breinify Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Breinify Service or certain features of the Breinify Service that Breinify may post on or link to on the Breinify Services (the “Additional Terms”), such as end-user license agreements for any downloadable applications that Breinify may offer, or rules applicable to particular features or content on the Breinify Service, subject to Section 8.3 above. All such Additional Terms are hereby incorporated by reference into, and made a part of, this Agreement.

8.8 Links to External Websites. The Breinify Service or website may contain links to third-party websites. Such linked websites are not under Breinify’s control, and Breinify is not responsible for their data, content, or functionality, or any changes or updates to those websites. Customer agrees that (i) Breinify is not directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s use of or reliance on any content, products, or services available on or through any linked website and (ii) any data or content included in or linked to from the Breinify Service, whether publicly posted or privately transmitted, is the sole responsibility of the person or entity providing the data, content, or functionality

8.9 Dispute Resolution and Arbitration.

  • 8.9.1 Generally. In the interest of resolving disputes between Customer and Breinify in the most expedient and cost effective manner, Customer and Breinify agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. The parties’ agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. CUSTOMER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND BREINIFY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
  • 8.9.2 Exceptions. Despite the provisions of Section 8.9.1, the parties agree that nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) file suit in a court of law to address an intellectual property infringement claim.
  • 8.9.3 Arbitrator. Any arbitration between Customer and Breinify will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Breinify.
  • 8.9.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if Breinify does not have a physical address on file for Customer, by electronic mail (“Notice”). Breinify’s address for Notice is: 21880 Rucker Drive, Cupertino, CA 95014. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties agree to use good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, Customer or Breinify may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Customer or Breinify must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the parties’ dispute is finally resolved through arbitration in Customer’s favor, Breinify will pay Customer the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Breinify in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
  • 8.9.5 Fees. If Customer commences arbitration in accordance with this Agreement, Breinify will reimburse Customer for Customer’s payment of the filing fee, unless Customer’s claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in [insert county], Florida, but if the claim is for $10,000 or less, Customer may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of Customer’s billing address. If the arbitrator finds that either the substance of Customer’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Customer agrees to reimburse Breinify for all monies previously disbursed by it that are otherwise Customer’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
  • 8.9.6 No Class Actions. CUSTOMER AND BREINIFY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Breinify agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
  • 8.9.7 Modifications. If Breinify makes any future change to this arbitration provision (other than a change to Breinify’s address for Notice), Customer may reject the change by sending Breinify written notice within 30 days of the change to Breinify’s address for Notice, in which case Customer’s account with Breinify will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments Customer reject will survive.
  • 8.9.8 Enforceability. If Section 8.9.6 is found to be unenforceable or if the entirety of this Section 8.9 is found to be unenforceable, then the entirety of this Section 8.9 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 8.5will govern any action arising out of or related to this Agreement.

8.10 Miscellaneous. This Agreement, together with the Breinify Privacy Policy and all other Additional Terms and all Order Forms, is the sole agreement of the parties concerning the subject matter hereof, and supersedes all prior agreements and understandings with respect to said subject matter. If any provision of an Order Form directly conflicts with, or expressly supersedes, any term in the main body of this Agreement, then the provisions of such Order Form shall prevail solely with respect to services described therein. No terms of any purchase order, acknowledgement or other form provided by Customer will modify this Agreement, regardless of any failure of Breinify to object to such terms. Any ambiguity in this Agreement shall be interpreted equitably and the parties waive the application of any rule of construction providing that ambiguities in an agreement will be construed against the party drafting such agreement. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. The words “include” and “including” shall not be construed or interpreted as terms of limitation. The relationship between the parties shall be that of independent contractors. Customer hereby grants Breinify the right to use Customer’s name, trademarks and logos in connection with customer references on Breinify’s website(s), in customer lists, in presentations, in promotional and marketing materials, or in any other similar manner. Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void shall be modified so as best to accomplish the original intent of the parties to the fullest extent permitted by law, and the remaining provisions of this Agreement will continue in full force and effect. Customer agrees to comply with all applicable export control laws and regulations related to its use of the Breinify Service or the Breinify Data. If Customer is a California resident, Customer may have this Agreement emailed to Customer by sending a letter to the address in Section 8.6 with Customer’s email address and a request for this Agreement.

How to Contact Us

Please contact us with any questions or comments about this Master Agreement, information we have collected or otherwise obtained about you, our use and disclosure practices, or your consent choices by email at legal@breinify.com.

Breinify Inc. 21880 Rucker Drive Cupertino, CA 95014