This Cloud Services Subscription Agreement (“SSA”) is a binding legal contract between the person or company signing or accepting this SSA (hereinafter, “Company” or “you”) and Brainbox AI US LLC (“Brainbox AI”). By accessing or using the Services, as defined below, you will be bound by the terms of this SSA. If you do not agree to the terms of this SSA, Brainbox AI is not willing to grant you any right to use or access the Services. If this SSA is being agreed to by a company or other legal entity, then the person agreeing to this SSA on behalf of that company or entity represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this SSA. In that case, all references to “you” refer to your employer. You should print and retain a copy of this SSA for your records.
2.1. Generally. Subject to the terms and conditions of this SSA and your payment of all relevant fees, Brainbox AI grants you and your End Users (as defined below) a non-exclusive, non-transferable subscription to access and use Brainbox AI’s cloud Services solely for your internal business purposes. Brainbox AI may, at its sole discretion, make non-material updates to the Services at any time, and Brainbox AI will use all reasonable efforts to make you aware of any such updates. To the extent any Brainbox AI software is provided to you for installation on your systems for use in connection with the Services, the Brainbox AI software will be included in the definition of Services and subject to the foregoing license. All software may only be used in support of your use of the Services and for no other purpose. For purposes of this SSA, “End Users” means your employees, contractors, tenants, and representatives who are authorized to access the Services on your behalf.
2.2. PER Services. As part of the Services, Brainbox AI may provide Proportional Energy Reporting services which estimate tenant utility usage based on data from Brainbox AI's cloud Services ("PER Services"). If you purchase these add-on PER Services, you acknowledge and agree that (a) the PER Services should only be used in connection with the relevant third-party products or systems identified by Brainbox AI in writing, (b) the PER Services do not provide revenue-grade metering and should only be used for monitoring and apportionment estimation purposes, (c) the accuracy and performance of metering devices is beyond Brainbox AI’s control and the PER Services are only an estimate, and (d) Brainbox AI makes no representations regarding the PER Services' compliance with local, regional or federal utility billing requirements. Accordingly, prior to allowing access to any PER Services and/or related reports, you must have an agreement between you and any End User third party about the use of the PER Services which must specify the foregoing points (a-d) and state that the PER Services shall not be used as proof of a party's energy consumption. BRAINBOX AI HAS NO LIABILITY FOR ANY DISPUTE THAT MAY ARISE BETWEEN TENANTS, LANDLORDS, OWNERS, AND/OR UTILITIES.
In the event Brainbox AI fails to achieve the Availability requirement, Brainbox AI will use commercially reasonable efforts to correct the interruption as promptly as practicable. In the event Brainbox AI fails to achieve the Availability requirement during the Term of this SSA, you may terminate this SSA within thirty (30) days of a written notice, without further obligation and receive a prorated refund of any pre-paid, unused recurring fees paid for the Service. The refund will constitute your sole and exclusive remedy and Brainbox AI’s sole and exclusive liability for failure to achieve the Availability requirement.
Brainbox AI shall measure Availability continuously. Brainbox AI will provide an Availability report for the previous twelve months within 45 days of receipt of a written request.
Severity Level |
Description |
Updates |
High |
Any problem that renders the Services inoperable, substantially degrades the performance thereof or adversely affects your business operations or causes financial liability due to operational or informational deficiency |
Hourly |
Medium |
Any problem that is not adversely affecting your business operations or causing financial liability, but repeatedly affects your use of the Services, data integrity or degrades the performance of the Services |
Every 4 hours
|
Low |
Any problem that does not impact your operation or use of the Services but still causes the Services to operate in non- compliance with its specifications and/or Documentation |
As updates are available
|
Brainbox AI will provide Service updates and bug fixes that Brainbox AI in its sole discretion makes generally available to its other similarly situated customers at no charge. However, you will not be entitled to receive updates or new releases that include new or different functionality for which Brainbox AI imposes an additional charge to its other customers. Such new or different functionality may be purchased by you, at your discretion, at Brainbox AI’s then current pricing. Brainbox AI will use commercially reasonable efforts to correct reproducible failures of the Service to perform in substantial accordance with their then-current Documentation. The support and maintenance services described in
c. this Section may be referred to, collectively, as the “Support Services,” which are deemed included in the definition of “Services.”
(b) the maximum amount permitted under applicable law. In the event an invoice remains unpaid forty-five (45) or more days from the invoice date, Brainbox AI may, in its discretion, suspend the Services until the invoice is paid in full. In addition to any other payments due under this SSA, you agree to pay, indemnify and hold Brainbox AI harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this SSA; excluding, however, income taxes on profits which may be levied against Brainbox AI. You will pay Brainbox AI on demand all reasonable attorney fees and other costs incurred to collect any fees or charges due under this SSA.
13.1. Your Warranty. You represent and warrant that (a) you have full power, capacity, and authority to enter into this SSA and to grant the license set forth in Section 9 (Your Data); and (b) use of Your Data as permitted under this SSA and your use of the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state and local laws, rules and regulations (including but not limited to applicable policies and laws related to spamming, privacy, and consumer protection) (collectively, “Applicable Law”).
13.2. Brainbox AI Warranty. During the Term, Brainbox AI represents and warrants (a) the Services will substantially comply with the Documentation; (b) it will use commercially reasonable efforts to screen the Services for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (c) it will comply with Applicable Law in performing this SSA. In the event of a breach of the warranty in this Section 13.2(a), Brainbox AI’s sole and exclusive liability and your sole and exclusive remedy will be to perform the defective Services again. In the event Brainbox AI is unable through reasonable efforts to correct the defective Services within thirty (30) days from receipt of notice from you of the breach, you may elect to terminate this SSA and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming Services.
13.3. Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 13.2 (BRAINBOX AI WARRANTY), THE SERVICES AND SUPPORT SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. BRAINBOX AI AND ITS RESELLERS, VENDORS, AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BRAINBOX AI OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF BRAINBOX AI’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT BRAINBOX AI AND ITS RESELLERS, VENDORS, AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEBSITES, COMPUTERS, OR NETWORKS. BRAINBOX AI WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. YOU ARE RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF YOUR DATA.
(b) modify the Services to make it non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to Brainbox AI, Brainbox AI may, in its sole discretion, immediately terminate this SSA and return the prorated portion of any pre-paid, unused fees for the relevant Services. Notwithstanding the foregoing, Brainbox AI will have no obligation with respect to any claim of infringement that is based upon or arises out of (i) the use or combination of the Services with any hardware, software, products, data, or other materials not provided by Brainbox AI, (ii) modification or alteration of the Services by anyone other than Brainbox AI, (iii) use of Services in excess of the rights granted in this SSA, or (iv) Your Data (collectively, the “Excluded Claims”). The provisions of this Section 14 (Brainbox AI Indemnity) state the sole and exclusive obligations and liability of Brainbox AI and its Resellers, licensors, and suppliers for any claim of intellectual property infringement arising out of or relating to the Services or this SSA, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.
18.1. Termination. This SSA will terminate (a) on the thirtieth (30th) day after either party gives the other written notice of a breach by the other of any material term or condition of this SSA, unless the breach is cured before that day; or (b) upon written notice by either party, immediately, if (i) a receiver is appointed for the other party or its property; (ii) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (iii) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof.
18.2. Suspension of Services. Notwithstanding any other provision of this SSA, Brainbox AI may, in its sole discretion, suspend your access to the Services for any of the following reasons (a) to prevent damages or risk to, or degradation of, the Services; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect Brainbox AI from potential legal liability; or (d) in the event an invoice remains unpaid for more than forty-five (45) or more days from the invoice date. Brainbox AI will use reasonable efforts to provide you with notice prior to or promptly following any suspension of the Services. Brainbox AI will promptly restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on Brainbox AI to monitor use of the Services.
18.3. Effect of Termination. Upon termination of this SSA or termination of the Services for any reason: (a) your and all End Users’ access to and use of the Services will cease as of the effective date of termination; (b) you will pay to Brainbox AI all undisputed sums due to Brainbox AI for Services through the effective date of such expiration or termination (prorated as appropriate); and (c) on your written request made within thirty
(30) days after the effective date of termination or expiration of this SSA, Brainbox AI will make Your Data available for export or download for a period of thirty (30) days from the date of such written request. After the foregoing period, Brainbox AI will have no obligation to maintain Your Data. Notwithstanding any other provision in this Agreement, upon your written request, Brainbox AI shall permanently delete and destroy Your Data (excluding any Aggregated Data), unless and except Your Data, in whole or in part, is required to be retained by any applicable laws.
19.1. Affiliates, Subcontractors and Vendors. Some or all of the Services may be provided by Brainbox AI’s affiliates, agents, subcontractors and information system vendors. The rights and obligations of Brainbox AI may be, in whole or in part, exercised or fulfilled by the foregoing entities. Brainbox AI will ensure such entities comply with all relevant terms of this SSA and any failure to do so will constitute a breach by Brainbox AI.
19.2. Publicity. Brainbox AI may identify you as a customer in its customer listings, Web sites, and other promotional materials. In addition, Brainbox AI may issue a press release regarding the parties’ new relationship under this SSA.
19.3. USA Patriot Act Notice. The U.S. federal USA Patriot Act (“USA Patriot Act”) provides generally for the operator of a communication host and law enforcement to be able to monitor any content, upon request of the operator. Brainbox AI anticipates fully complying with all its obligations, and availing itself of all its rights, under the USA Patriot Act.
19.4. Force Majeure. Except for the payment of money as described in Section 12 (Fees) of this SSA, neither party will be liable for any failure or delay in performance under this SSA which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, quarantines, pandemic, export control regulation, laws, judgments or government instructions (collectively, “Force Majeure Events”).
19.5. Entire Agreement; Amendment. This SSA sets forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this SSA, except as referenced herein.
19.6. Governing Law, Venue, and Limitation of Actions. This SSA will be construed according to, and the rights of the parties will be governed by, the law of the State of Delaware, without reference to its conflict of laws rules. The parties agree that all actions or proceedings arising in connection with this SSA will be tried and litigated exclusively in the state or federal courts (if permitted by law and a party elects to file an action in federal court) located in Delaware. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this SSA in any jurisdiction other than that specified in this Section. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section. No action, regardless of form, arising out of this SSA, may be brought by either party more than one (1) year after the cause of action has arisen.
19.7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this SSA. In particular, no End User will be deemed a third- party beneficiary of this SSA or have any rights under this SSA.
19.8. Relationship of the Parties. The parties agree that Brainbox AI will perform its duties under this SSA as an independent contractor. Nothing contained in this SSA will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by Brainbox AI who perform duties related to this SSA will remain under the supervision, management, and control of Brainbox AI.
19.9. Assignment. You may not assign this SSA without the prior written consent of Brainbox AI. Notwithstanding the foregoing, upon advance written notice to Brainbox AI, you may assign this SSA to an entity that is either (a) acquiring all or substantially all of your assets and assuming all liabilities related to such assets; (b) acquiring the division, business unit, building or operation of yours which uses Services and assuming the liabilities of such division, business unit, building or operation; or (c) a subsequent tenant assuming your lease or entering into its own lease for the premises which use the Services. Additionally, in order for you to be released from liability under this SSA, the assignee must agree in writing with Brainbox AI that the assignee (i) accepts the terms and conditions of this SSA (and any amendments) or accepts the then-current form of Brainbox AI’s SSA with Brainbox AI, and (ii) accepts full responsibility for any existing payment obligations under this SSA.
19.10. Severability. If any of the provisions of this SSA are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this SSA and will not cause the invalidity or unenforceability of the remainder of this SSA.
19.11. Waiver. Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this SSA. Further, the waiver by either party of a particular breach of this SSA by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same other provisions of this SSA.
19.12. Choice of Language. The parties expressly agree that this SSA and all related documents, including notices and other communications, be drafted exclusively in English. Les parties consentent expressément à ce que la présente convention ainsi que tous les documents qui s’y rattachent, incluant les avis et autres communications, soient rédigés en anglais exclusivement.
19.13. Survival. The following provisions will survive termination or expiration of this SSA: 8 (Proprietary Rights), 13.3 (Disclaimer of Warranties), 14 (Brainbox AI Indemnity) (for claims accruing prior to termination), 15 (Your Indemnity) (for claims accruing prior to termination), 16 (Confidentiality), 17 (Limitation of Liability and Damages), 18 (Termination), and 19 (General Provisions).
19.14. Electronic Execution. This SSA may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and your acceptance will be deemed binding between the parties. You acknowledge and agree you will not contest the validity or enforceability of this SSA and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form.
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