PLEASE READ THESE ENTERPRISE TERMS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY BRAINBASE, INC. (“BRAINBASE”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH BRAINBASE WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), OR BY CLICKING A BUTTON OR CHECKBOX ON YOUR COMPUTER SCREEN INDICATING YOUR ACCEPTANCE, YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS AND EXHIBITS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” OR “YOU” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA BRAINBASE’S ONLINE PROCESS AND WHICH IS ACCEPTED BY BRAINBASE SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
Brainbase reserves the right to modify these Terms at any time, however any modifications made after your acceptance of these Terms shall not be effective until the next renewal of your then-current term. The most current version of the Terms will be posted at support.brainbase.com. Brainbase reserves the right to change the Terms at any time, and if such change occurs, Brainbase will notify Customer by placing a notice on www.brainbase.com by sending Customer an email, and/or by some other reasonable means. Customer acknowledges and agrees that if Customer uses the Services in any way after a change to the Terms is effective; Customer has consented to all such changes to the Terms.
“Authorized Users” means Customer’s employees, consultants, contractors, and agents who have been authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement, and for whom access to the Services has been purchased hereunder.
“Brainbase IP” means the Services, the Documentation, the Software and any and all intellectual property related thereto.
“Brainbase Assist” means Brainbase’s software-as-a-service offering at www.brainbase.com/assist.
“Brainbase File” means Brainbase’s software-as-a-service offering at www.brainbase.com/file.
“Brainbase Vault” means Brainbase’s software-as-a-service offering at www.brainbase.com/vault.
“Content” means materials including, but not limited to, text, graphics, data, articles, photos, images, illustrations, information, and other content that is submitted, displayed, available on, provided, shared, uploaded, posted, or otherwise transmitted through or on the Services.
“Customer Content” means any Content that is submitted, provided, shared, uploaded, posted, or otherwise transmitted through or on the Services by or on behalf of Customer or Authorized User.
“Documentation” means Brainbase’s user manuals and guides relating to the Services available at support.brainbase.com.
“Services” means the commercial offerings provided by Brainbase through and on its website, including, but not limited to, Brainbase Assist, Brainbase File and Brainbase Vault.
Access and Use.
Access. Subject to all terms and conditions of this Agreement, Brainbase hereby grants Customer a non-exclusive, non-transferable license to access and use the Services during the Term, solely by Authorized Users for Customer’s internal use, and solely in accordance with Brainbase’s Documentation.
Provision of Use. The Services are subject to modification, enhancement or change from time to time, at Brainbase’s sole discretion, for any purpose deemed appropriate by Brainbase. Brainbase will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Brainbase reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, (ii) in the event an Authorized User is in breach of this Agreement, (iii) in the event Brainbase determines, in its sole discretion, that (A) there is a threat or attack on any Brainbase IP; (B) an Authorized User’s use of Brainbase IP disrupts or poses a security risk to Brainbase IP or to any other Brainbase customer or vendor; (C) Customer has ceased to continue its business in the ordinary course; (D) Brainbase’s provision of the Services to any Authorized User is prohibited by applicable law; (E) if Brainbase receives any notice or claim that any Customer Content, or activities hereunder with respect to any Customer Content, may infringe or violate rights of a third party (for which Customer will indemnify Brainbase from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such claim, as incurred); or (iv) any vendor of Brainbase has suspended or terminated Brainbase’s access to or use of any third-party services or products required to enable Customer to access the Services (any such suspension, a “Service Suspension”). Brainbase shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Brainbase will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. Notwithstanding any other provision of this Agreement, Brainbase may remove Content, including Customer Content, from the Services at any time and for any reason, with or without notice to Customer.
Additional Services. The parties may agree to have Brainbase perform certain additional services for Customer (e.g., training, support or implementation assistance) (“Additional Services”), by describing such Additional Services and any fees therefor on an Order Form. Upon payment of any applicable fees set forth in each Order Form (which shall be paid in accordance with Section 5), Brainbase agrees to use reasonable commercial efforts to provide the Additional Services described therein for the term specified therein (if any). If Brainbase provides Additional Services beyond those agreed in an Order Form (including, without limitation, in excess of any hours estimate set forth therein), Customer will pay Brainbase at its then-current rates for consultation.
Intellectual Property Rights.
Except as expressly set forth herein, Brainbase alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to Brainbase’s business, products, and/or services provided by Customer, any Authorized User, or any third party on behalf of Customer (“Feedback”). Customer hereby assigns such Feedback to Brainbase and such Feedback will be treated as Brainbase’s Confidential Information. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or Software, or any intellectual property rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to Brainbase IP.
Cooperation. Customer will cooperate with Brainbase in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Brainbase may reasonably request. Customer will also cooperate with Brainbase in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services. Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Brainbase.
Use Restrictions. Customer shall not, directly or indirectly: (i) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, Documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) copy, modify, translate, or create derivative works of the Services or Software, in whole or in part; (iii) use or access the Services or Software for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Customer as set forth in this Agreement; (iv) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Software; (v) remove any product identification, proprietary, copyright or other notices from the Services or Software; (v) use the Services or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations (including but not limited to any privacy laws, and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation); or (vi) permit any third party to do any of the foregoing. Customer will use reasonable efforts to prevent any unauthorized use of the Services or the Software, and will promptly notify Brainbase of any unauthorized use that comes to Customer’s attention and provide all reasonable cooperation to prevent and terminate such use.
Customer Content. Customer is responsible for all Customer Content that it contributes to the Services and any Customer Content posted or transmitted on or through the Services is the sole responsibility of the Customer from whom such Customer Content originated and Brainbase does not make any representation, warranty or guarantee as to the accuracy or completeness of the Customer Content. Customer represents and warrants that all Customer Content that is provided to Brainbase is true, accurate, valid, current and complete, and that Customer has all necessary rights, consents and authorizations to provide, share, and use the Customer Content in connection with the Services. Customer acknowledges that Brainbase is not liable for any errors or omissions in the Customer Content and agrees that Brainbase has no duty or obligation to update any information contained in the Customer Content.
Third Party Services. User interaction. Customer acknowledges and agrees that the Services may contain links or connections to third party websites or services that are not owned or controlled by Brainbase (“Third Party Services”). Brainbase is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Brainbase does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party is solely between Customer and such third party and is governed by such third party’s terms and conditions.
User Interaction. Customer acknowledges and agrees that Brainbase has no duty to take any action regarding how Customer may interpret and use Content or what actions Customer may take as a result of having been exposed to Content. Brainbase cannot guarantee the identity of any users with whom a Customer interacts with through the Services. Brainbase has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed by any user of the Services. Customer should make all investigations that are necessary or appropriate before proceeding with any online or offline transaction with any user of the Services. Customer agrees that Brainbase shall not be responsible or liable for any loss or damage of any sort incurred as the result of Customer’s dealings with any third party, including any other user, of or through the Services. If there is a dispute between Customer and other users of the Services, Customer agrees that Brainbase is under no obligation to become involved, and Customer releases Brainbase, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or the Services.
Fees and Payment.
Payment of Fees. Customer shall pay Brainbase the fees set forth on Brainbase’s website and/or on an applicable Order Form, as applicable (collectively, the “Fees”). Customer shall make all payments hereunder in US dollars on or before the due date set forth on Brainbase’s website or in the applicable Order Form, as applicable. If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form, Customer will be invoiced at the end of each calendar month for the excess usage over the Service Capacity, at the rate set forth on the Order Form.
Late Fees. Except as set forth on any applicable Order Form, Brainbase shall invoice Customer for all Fees due and payable. If Customer fails to make any payment after 7 days of the date of invoice, or the date on which payment is due in the event no invoice applies, then, without limiting Brainbase’s other rights and remedies: (i) Brainbase may charge interest on the past due amount at the rate of 1.0% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Brainbase for all costs incurred by Brainbase in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 14 days or more, Brainbase may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Brainbase’s income.
Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of ten years after the termination or expiration of this Agreement with respect to matters related to accurately determining amounts due hereunder (the “Audit Period”). During the Audit Period, Brainbase may, at its own expense, and on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement. If such inspection and audit reveals that Customer has underpaid Brainbase with respect to any amounts due and payable, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with this Section 5. Notwithstanding the foregoing, Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds 5% of the amounts due and payable for the applicable period.
All fees payable hereunder are non-refundable except as expressly stated in our Refund Policy set forth at support.brainbase.com.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, that is marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees or consultants who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of this Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s confidentiality obligations with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. Notwithstanding anything else, Brainbase may use Customer Content to fulfill its obligations and exercise its rights under this Agreement and to create and use aggregate anonymous data, provided that any such creation or use does not disclose any Customer Confidential Information.
Warranties and Disclaimers.
Mutual. Each Party represents and warrants that (i) it is duly organized, validly existing, and in good standing under the laws of the state of its organization; (ii) it has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted to the other Party herein; (iii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any other agreement to which such party is a party or by which it is otherwise bound; and (iv) it and its performance hereunder will comply with all applicable laws and regulations.
Brainbase. Brainbase warrants that (i) it will not knowingly include, in any Software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data, other than code intentionally included by Brainbase for purposes of accessing and/or suspending access to the Software as authorized herein and/or providing maintenance and support, and (ii) it will provide the support and professional services under this Agreement in a professional and workmanlike manner.
Relationship of the Parties; No Professional Advice. CUSTOMER ACCESSES THE SERVICES AND ALL CONTENT PROVIDED ON OR THROUGH THE SERVICES AT ITS OWN RISK. NO CONTENT, OR ANY OTHER INFORMATION, SUMMARIES, OR DOCUMENTS RECEIVED FROM BRAINBASE CAN OR SHOULD BE CONSTRUED AS PROFESSIONAL ADVICE OF ANY KIND (INCLUDING, WITHOUT LIMITATION, BUSINESS, EMPLOYMENT, INVESTMENT, ACCOUNTING, TAX, AND/ OR LEGAL ADVICE). WITHOUT LIMITING THE FOREGOING, BRAINBASE IS NOT A LAW FIRM AND THE INFORMATION PROVIDED THROUGH OUR SERVICES DOES NOT, AND IS NOT INTENDED TO, CONSTITUTE LEGAL ADVICE. NONE OF BRAINBASE’S EMPLOYEES ARE LAWYERS AND THEY ALSO DO NOT PROVIDE LEGAL ADVICE. BRAINBASE’S SERVICES ARE NOT A SUBSTITUTE FOR THE ADVICE OR SERVICES OF AN ATTORNEY.
Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, THE SERVICES, CONTENT, BRAINBASE IP AND ANYTHING ELSE PROVIDED BY OR ON BEHALF OF BRAINBASE IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. BRAINBASE (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BRAINBASE SPECIFICALLY DISCLAIMS INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, BRAINBASE MAKES NO WARRANTY OF ANY KIND THAT BRAINBASE IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Brainbase Indemnification. Brainbase shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that the Services infringe or misappropriate such third party’s patents, copyrights, or trade secrets, provided that Customer promptly notifies Brainbase in writing of the claim, cooperates with Brainbase, and allows Brainbase sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Brainbase, at Brainbase’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Brainbase determines that neither alternative is reasonably available, Brainbase may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 9(a) will not apply with respect to portions or components of the Services: (A) that are not created by Brainbase, including but not limited to Customer Content or Third-Party Services, (B) that are modified by anyone other than Brainbase where the alleged infringement relates to such modification, (C) that are combined with other products, processes or materials where the alleged infringement relates to such combination, (D) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (E) where Customer’s use thereof is not strictly in accordance with this Agreement and all related documentation.
Customer Indemnification. Customer shall indemnify, hold harmless, and, at Brainbase’s option, defend Brainbase from and against any Losses resulting from any Third-Party Claim relating to the Customer Content, anything excluded from Brainbase’s indemnity obligation in Section 9(a) above, breach by Customer or any Authorized User of Section 4 (Customer Responsibilities) or otherwise from Customer’s or any Authorized User’s negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement, provided that Customer may not settle any Third-Party Claim against Brainbase unless Brainbase consents to such settlement, and further provided that Brainbase will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND BRAINBASE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitations of Liability.
Indirect Liabilities. IN NO EVENT WILL BRAINBASE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BRAINBASE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
Direct Liability. IN NO EVENT WILL BRAINBASE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO BRAINBASE UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR $50,000.00, WHICHEVER IS LESS.
Exclusions. THE FOREGOING LIMITATIONS IN THIS SECTION 10 SHALL NOT APPLY TO BRAINBASE’S INDEMNIFICATION OBLIGATIONS HEREUNDER OR TO DAMAGES ARISING OUT OF BRAINBASE’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 7.
Term and Termination.
Term. Each Order Form shall be for a period of two (2) years from the initial term (the “Initial Term”), and shall automatically renew for a sequential one (1) year term, unless either party terminates such Order Form by giving the other party thirty (30) days prior written notice before the end of the then current term. In addition to the foregoing, no expiration or termination of any individual Order Form will affect this Agreement, or affect the payment of any Fees due and payable to Brainbase pursuant to any other applicable Order Form and/or Brainbase’s website.
Termination. In addition to any other express termination right set forth in this Agreement: (i) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured for 30 days (or 10 days for Customer’s failure to pay any amount when due) after the non-breaching Party provides the breaching Party with written notice of such breach; and (ii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Brainbase may terminate this Agreement at any time for any reason upon forty-five (45) days’ notice to Customer.
Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of Brainbase IP and, without limiting Customer’s obligations under Section 7, Customer shall delete, destroy, or return all copies of Brainbase IP and certify in writing to Brainbase that all Brainbase IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
Survival. This Section 11(d) and Sections 1, 5, 7, 8(d), 9, 10, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
This Agreement represents the entire agreement between Customer and Brainbase with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties (whether written, oral, or electronic) between Customer and Brainbase with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Los Angeles, California. Any dispute, claim or controversy arising out of or relating to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by binding arbitration exclusively in Los Angeles, California, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Either party may commence arbitration by providing to JAMS and the other party a written request for arbitration, setting forth the subject of the dispute and the relief requested. The parties shall cooperate with JAMS and with one another in selecting an arbitrator from the JAMS panel of neutrals and in scheduling the arbitration proceedings. The parties agree to abide by and perform any award rendered by the arbitrator. The arbitrator shall issue the award in writing and therein state the essential findings and conclusions on which the award is based. The results of the arbitration shall be final and binding on the parties. Any arbitration award may be entered in any court in Los Angeles, California. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration or other equitable relief which remedies and relief shall be sought exclusively from the courts of Los Angeles, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form and to [email protected] at Brainbase. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Brainbase may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 4, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. 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.