This Agreement provides that all disputes between you and R-Brain will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 14 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with R-Brain.
This Customer Agreement (this “Agreement”) is entered into by and between R-Brain, Inc., with offices located at 182 Howard St. #319, San Francisco, CA 94105 (“R-Brain,” “we,” or “us”) and you, the user of R-Brain’s Service (as defined below) clicking-to-accept this Agreement or, if applicable, the employer or other entity on whose behalf you are clicking-to-accept this Agreement (“Customer” or “you”). R-Brain and you may be singularly or collectively referred to in this Agreement as the “Party” or the “Parties”, respectively.
1. Service Description. “Service” means those modules and features of R-Brain’s software-as-a-service platform for authoring, processing, and sharing data analyses as made available by R-Brain from time to time through one or more web sites owned or controlled by or on behalf of R-Brain, including associated documentation made available to you in written form or online.
2. Access to and Use of the Service.
2.1 Eligibility. You must be at least 13 years of age to use the Service. By agreeing to this Agreement, you represent and warrant to us that: (a) you are at least 13 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound by this Agreement on behalf of that organization.
2.2 Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
2.3 Right to Access and Use. Subject to your full and ongoing compliance with the terms and conditions of this Agreement, including without limitation the payment of all applicable fees, R-Brain grants you a non-exclusive, non-transferable, non-sublicensable right, during the term of this Agreement, to access and use the Service as expressly identified and described on R-Brain’s website, solely for your internal business purposes.
2.4 Customer Responsibilities. You are responsible for all activities that occur under your user accounts. You shall: (i) obtain and maintain all equipment and any ancillary services needed to connect to, access or otherwise use the Service and ensure that such equipment meets the minimum system guidelines set forth in the applicable documentation; and (ii) have sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all information, content, data, and materials imported or input by you into the Service or otherwise provided to R-Brain hereunder (“Customer Data”).
2.5 Service Guidelines. You shall use the Service solely as contemplated by this Agreement and shall not: (i) submit or transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs to or through the Service; (ii) transmit unlawful, immoral, libelous, tortious, infringing, defamatory, threatening, vulgar or obscene material, or material harmful to minors; (iii) collect data regarding other users of the Service or other third parties without their consent; (iv) interfere with or disrupt the integrity or performance of the Service or the content, data, or information contained therein; (v) attempt to gain or permit unauthorized access or access to a third party (including customers or vendors) to the Service, computer systems or networks related to the Service; (iv) disassemble, reverse engineer, or decompile any of the Technology (defined below), or attempt to do so; (v) “frame”, “mirror”, “skin,” “white-label” or otherwise embed or incorporate any of the Service or any content, data, or information contained therein (other than Customer Data) in any of your or a third party’s systems or services; or (vi) access the Service to build a competitive product or service, reproduce features of the Service, or resell the Service.
3. Fees and Billing.
3.1 Fees. Access to the Service, or to certain features of the Service, may require you to pay fees. Fees may be based on your usage of computational resources, user accounts, or other metrics as set forth on R-Brain’s website from time to time. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars and are non-refundable. If R-Brain changes the fees for the Service, including by adding additional fees or charges, R-Brain will provide you advance notice of those changes. If you do not accept the changes, R-Brain may discontinue providing the Service to you. R-Brain will charge the payment method you specify at the time of purchase. You authorize R-Brain to charge all sums as described in this Agreement, for the Service you select, to that payment method. If you pay any fees with a credit card, R-Brain may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. The Service may include functionality for activating, updating or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Service, you authorize R-Brain to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. If you use the Service to update or cancel any existing authorized one-time or recurring payment, it may take several business days for the update or cancellation to take effect.
3.2 Taxes. All payments required by this Agreement exclude all sales, value-added, use, or other taxes and obligations, all of which you will be responsible for and will pay in full, except for taxes based on R-Brain’s net income. If R-Brain has the legal obligation to pay or collect taxes for which you are responsible pursuant to this Section 3.2, R-Brain may invoice the appropriate amount to you and you shall pay such amount unless you provides R-Brain with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Marketplace Content
4.1 Introduction. R-Brain may allow its users to make data and application services they have developed to run on the Service available for use by other users of the Service (such functions and application services, “Marketplace Content”). Marketplace Content is the sole responsibility of the Service users that have made such Marketplace Content available for use through the Service (their “Developers”). R-Brain allows you to access and use such Marketplace Content through the Service solely in accordance with the following terms of this Section 3:
4.2 Third-Party Terms and Privacy Policies Apply. All of your transactions for the acquisition or use of Marketplace Content conducted on the Service platform are made directly between you and the Developer(s) of such Marketplace Content, and R-Brain is not a party to such transactions. Your acquisition and use of such Marketplace Content is governed by the terms and conditions and privacy policies specified by the Developer of such Marketplace Content (“Third-Party Terms”), if any. Before acquiring or using Marketplace Content, please carefully read all Third-Party Terms that apply to such Marketplace Content before accepting them.
4.3 Access to your Data. If you acquire or use Marketplace Content through the Service, that Marketplace Content and its Developers will be able to access your profile and contact information for the purposes of providing support, resolving disputes, and generally communicating with you. That may result in the disclosure of such information by those Developers or their Marketplace Content. Additionally, the Developers of the Marketplace Content you use will be able to access any Customer Data you provide to or process using such Marketplace Content. R-Brain is not responsible for any transmission, collection, disclosure, modification, use or deletion of any information or Customer Data provided to or processed by the Marketplace Content you acquire or use.
4.4 No Warranties or Support Obligations; Dispute Resolution Assistance. R-Brain offers NO WARRANTIES OR SUPPORT for Marketplace Content or other third-party products or services, whether or not they are promoted by R-Brain or otherwise certified by R-Brain for use with the Service. Any and all warranty and support obligations with respect to your use of Marketplace Content are owed solely by the Developers of the applicable Marketplace Content. Accordingly, if you wish to make a warranty claim or support request with respect to Marketplace Content, you should first contact the Developer of the Marketplace Content, to attempt to resolve the issue directly before contacting R-Brain. If, at least seven (7) days after your initial request for the Developer’s assistance, the Developer of the Marketplace Content has not responded to your request for assistance or you have otherwise been unable to resolve the dispute, then you may escalate the issue to R-Brain’s support team by emailing email@example.com, and we may, in our sole discretion, try to help you resolve your dispute with the Developer. Please include in your initial request as much additional information as you can about the issues you are having with the Marketplace Content and the steps you have taken to resolve the issues directly with its Developer before referring the issue to R-Brain support. The time it takes us to respond to your request will depend on the number of open support cases at the time of your request and your and the Marketplace Content Developer’s responsiveness to requests for additional information and assistance. If you refuse to provide such information and assistance, we may be unable to help you resolve the dispute.
4.5 Disclaimer. R-Brain is not responsible for any Marketplace Content, whether or not R-Brain has reviewed, moderated, or promoted such Marketplace Content. You agree that you bear all risks associated with using or relying on Marketplace Content. R-Brain does not in any way warrant the accuracy, reliability, completeness, usefulness, non-infringement, or quality of any Marketplace Content or any content or information related thereto, regardless of who authored or developed such Marketplace Content or content (including R-Brain representatives). R-Brain hereby disclaims all warranties, including but not limited to any implied warranties of merchantability or fitness for a particular purpose, relating to such Marketplace Content and related information and content. You agree that R-Brain will not be liable or responsible in any way for any losses or damage of any kind, including lost profits or other indirect or consequential damages, relating to your use of or reliance upon any Marketplace Content or any information or content related thereto.
5. Marketplace Developer Terms
5.1 Introduction. This Section 5 applies with respect to any Marketplace Content that you make available for use through the Service. R-Brain reserves the right to impose additional eligibility guidelines or other requirements, as described on the Service website from time to time, that may limit or restrict your ability to offer Marketplace Content through the Service. R-Brain also reserves the right, but has no obligation, to review or audit any or all Marketplace Content periodically to ensure that it conforms to this Agreement, and to remove or restrict access to any Marketplace Content that does not conform to this Agreement.
5.2 License to R-Brain; Retained Rights. You hereby grant to R-Brain and its affiliates a non-exclusive, worldwide license to use, reproduce, distribute, transmit, import, export, market, and otherwise make available, through the Service, any Marketplace Content you list on the Service and all additional information, content, and materials you provide for publication in connection with such Marketplace Content (together “Ancillary Content”), under all intellectual property rights in and to such Marketplace Content and Ancillary Content. R-Brain may sublicense such rights to its service providers and contractors to enable such third parties to perform services on its behalf in connection with the Service. Except as provided in this Section 5.2, and subject to R-Brain’s retained rights in and to the Service, as between you and R-Brain, you retain all rights, title, and interest in and to your Marketplace Content and Ancillary Content, including any and all intellectual property rights in and to such content.
“You acknowledge that [this Agreement] is between [User] and [Customer] only, and not with R-Brain, Inc. or its affiliates (“R-Brain”), and that R-Brain is not responsible for the [Content] or the contents or performance thereof. R-Brain has no obligation whatsoever to furnish any support or maintenance services with respect to the [Content]. In the event of any failure of the [Content] to conform to any applicable warranty, you may notify R-Brain and R-Brain may refund any applicable purchase price for the [Content] or your use thereof to you; and, to the maximum extent permitted by applicable law, R-Brain has no other warranty obligation whatsoever with respect to the [Content]. R-Brain is not responsible for addressing any claims by you or any third party relating to the [Content] or your or their use of the [Content], including: (i) product liability claims; (ii) any claim that the [Content] fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. R-Brain is not responsible for the investigation, defense, settlement and discharge of any third party claim that the [Content] and/or your use of the [Content] infringes or misappropriates any third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the [Content]. R-Brain and its affiliates are intended third-party beneficiaries of [this Agreement], and upon your acceptance of [this Agreement], R-Brain will have the right (and will be deemed to have accepted the right) to enforce [this Agreement] against you as a third-party beneficiary of this Agreement. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; and (iii) you will not use or export the [Content] except in full compliance with all applicable export control laws and after obtaining any necessary permits and licenses.”
5.5 Support. As between you and R-Brain, you are solely responsible for providing support and maintenance services to Service users with respect to any Marketplace Content you make available on the Service. Subject to this Agreement, you may provide such support and maintenance in accordance with your own terms, policies, and procedures, including without limitation in exchange for additional fees.
5.6 Dispute Resolution. You agree that you will timely respond to any requests for support related to any paid users of Marketplace Content you make available through the Service, and to work with any Service users who have purchased such Marketplace Content and with R-Brain support personnel to resolve any disputes resulting from such transactions. R-Brain is not responsible for any dispute between you and any Service user or other third party, but R-Brain may at its option assist in the resolution of any dispute between you and another Service user if asked to do so. When necessary to resolve a case, R-Brain reserves the right to issue a refund to purchasers of your Marketplace Content and deduct the funds earned from such purchase transactions from your account. R-Brain may issue such refunds automatically if R-Brain determines that you have failed to reasonably respond to the purchaser’s or R-Brain’s requests for information or assistance with dispute resolution. If R-Brain determines that sales of a particular item of Marketplace Content are fraudulent or otherwise violate R-Brain policies, or if R-Brain observes that you routinely fail to respond appropriately to requests for support or assistance with dispute resolution, R-Brain may, in its sole discretion: (a) suspend your account; (b) remove the applicable Marketplace Content from the Service; and/or (c) issue refunds to the purchasers of such Marketplace Content and deduct such amounts from your account. Except as provided herein, you are solely responsible for determining and publishing the terms and conditions under which you will provide refunds to users of your Marketplace Content, and for providing such refunds in accordance with such terms and conditions.
5.7 R-Brain’s Limited Role as Payment Agent. You will be the seller of record for the Marketplace Content you make available through the Service. Except as expressly set forth in this Agreement, R-Brain is not involved in any underlying transaction between you and any user of such Marketplace Content. If you choose to list Marketplace Content as paid services, then R-Brain will process all payments and refunds for transactions involving such Marketplace Content, and collect the applicable proceeds of such transactions, on your behalf. R-Brain does not guarantee payment on behalf of any Service user or any third party. You will ensure that all fees and charges payable by users of your Marketplace Content are billed and collected through the Service, and you will not offer or establish any alternative means of payment. R-Brain reserves the right to impose additional restrictions on some or all Service users relating to the value of transactions performed or entered into by such users through the Service, and to withhold or refuse to process any transactions R-Brain believes in good faith may be fraudulent, unlawful, or otherwise contrary to this Agreement.
5.8 Commissions and Fees. R-Brain may deduct a commission or similar fees from all payments of funds processed by R-Brain on your behalf for transactions between you and other Service users, including transactions related to use of your Marketplace Content. The amount(s) of such commissions or fees shall be as set forth on the Service website, and may be revised by R-Brain from time to time in R-Brain’s sole discretion, provided that any such changes will not be effective until thirty (30) days after R-Brain posts notice of such changes to the R-Brain website.
5.9 Remittance of Balances. At any time at which the funds balance associated with your Service account exceeds R-Brain’s minimum threshold for remittances, as may be established or modified by R-Brain from time to time in its reasonable discretion (the “Minimum Remittance Amount”), you may request a disbursement of such funds. Such remittances must meet or exceed the Minimum Remittance Amount and cannot exceed the balance associated with your account. R-Brain may withhold, deduct, or set off any amounts payable by you to R-Brain or its affiliates against such remittances. All payments to you will be sent through the Automate Clearing House (ACH) system to the U.S. bank account you designate at the time you request such payment. If an error occurs in connection with any such payment, you authorize R-Brain to correct such error by debiting or crediting your designated bank account or any other bank account or payment card you have on file with R-Brain in the amount of such error, plus any fees charged by your bank or payment provider for declined transactions, provided that R-Brain does so in accordance with applicable law.
5.10 Taxes. You are responsible for calculating and paying any and all taxes and duties owed or required to be collected for any reason in connection with any transaction with respect to your Marketplace Content, including any applicable sales, use, excise, import, export, value added, withholding, or other similar taxes and duties. R-Brain has no responsibility to determine whether any such taxes or duties apply to any transactions related to your Marketplace Content or to pay such taxes or duties or report any information with respect to such transactions or associated taxes or duties to any third party.
5.11 Marketplace Representations and Warranties. You represent and warrant that (a) you are the creator and owner of, and/or have obtained all licenses, rights, consents, and permissions necessary to provide and to authorize R-Brain to reproduce, distribute, create derivative works of, publicly display, publicly perform, sell, offer for sale, import, export, and otherwise fully exploit the Marketplace Content you make available through the Service in accordance with the licenses that you grant or purport to grant to R-Brain hereunder; and (b) such Marketplace Content, and the provision and use of such Marketplace Content as contemplated by this Agreement, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the privacy, publicity or other rights of any person; (iii) contain any viruses, adware, spyware, back-doors, time bombs, drop dead devices, worms, Trojans, or other malicious code, content, or files that allow you or any third party to circumvent any security features of the Service (including without limitation any privacy settings), or obtain unauthorized access to any computer or other device; or (iv) cause R-Brain or any user of such Marketplace Content to violate any law or regulation.
5.12 Marketplace Indemnity. You hereby agree to defend, indemnify, and hold harmless R-Brain, its affiliates, and their respective employees, officers, directors, and representatives from and against any and all claims, actions, proceedings, liabilities, damages, fines, penalties, and other losses and expenses (including reasonable attorneys’ fees) arising out of or relating to (a) alleged infringement or misappropriation of any intellectual property rights or violation of other third party rights by your Marketplace Content or Ancillary Content or the provision, distribution, display, or other use thereof in accordance with this Agreement; (b) any dispute between you and any user or purchaser of the Marketplace Content or Ancillary Content you make available through the Service; (c) any taxes or duties imposed or due in connection with transactions related to your Marketplace Content or your failure to collect, pay, or report any such taxes or duties; (d) your breach of any Third-Party Terms or other agreements entered into between you and any other Service user or other third party, including any failure to provide refunds promised or otherwise owed to purchasers of your Marketplace Content; (e) your failure to implement the minimum end-user terms specified in Section 5.4; (f) your breach of any warranty under Section 5.11; and/or (g) your failure to comply with any other applicable law or regulation. R-Brain will strive to promptly notify you if we become aware of any claim subject to indemnification under this Section 5.12, but any failure to do so will not limit your obligations hereunder except to the extent that such failure materially prejudices your ability to defend the claim. You may not enter into any settlement or compromise of any such claim without R-Brain’s approval, which shall not be unreasonably withheld or delayed. To the fullest extent permitted under applicable law, R-Brain reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with its defense of that claim.
6. Proprietary Rights.
6.1 Reservation of Rights. You acknowledge that in providing the Service, R-Brain utilizes (i) the R-Brain name, the R-Brain logo, the R-Brain’s websites and related domain names, the product names associated with the Service and other trademarks; (ii) certain software, documents, video content, and other works of authorship; (iii) analytical, predictive, and optimization models, frameworks, rules, algorithms, and similar systems, data mining and other algorithms, and (iv) other technology, software, hardware, products, processes, algorithms, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively “Technology”). As between you and R-Brain, R-Brain reserves all rights, title and interest, including all intellectual property rights in and to, the Technology and the Service, any and all modifications, customizations or improvements to any of the foregoing, and any Service usage data collected or obtained by R-Brain (“Derivatives”). Other than as expressly set forth in this Agreement, no license or other rights in the Technology or Derivatives are granted to you.
6.2 Data. R-Brain acknowledges that, as between R-Brain and you, you are the sole and exclusive owner of the Customer Data, and you hereby grant R-Brain, a worldwide, nonexclusive right and license to use any Customer Data imported, obtained through your system APIs or integrated with the Service in connection with the provision of the Service to you, and to use the know-how and analytical results resulting from aggregated, de-identified usage data generated by R-Brain in connection with the enhancement, improvement, and provision of the Service and derivatives thereof (including R-Brain’s Technology and Derivatives), provided that the foregoing is not a license to provide or disclose any Customer Data to any third party in raw or disaggregated form, or to identify you as the source of any such Customer Data or analytical results, except as expressly provided in the Marketplace Terms.
7. Digital Millennium Copyright Act
7.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
182 Howard St. #319
San Francisco, CA 94105
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must comply with elements of notification as described in 17 U.S.C. §512.
7.2 Repeat Infringers. R-Brain will promptly terminate the accounts of users that are determined by R-Brain to be repeat infringers.
8.1 Definition of Confidential Information. As used herein, “Confidential Information” means all information of a Party (“Disclosing Party”), which if disclosed to the other Party (“Receiving Party”): (i) in tangible form, is designated in writing as being confidential at the time of disclosure, and (ii) if disclosed orally or visually, is identified as confidential at the time of disclosure, and reduced to writing and provided to the Receiving Party within thirty (30) days of disclosure. Notwithstanding the foregoing, (a) the Confidential Information of R-Brain shall include, without limitation, the terms and conditions of this Agreement, the Technology, the Derivatives, and the Service; (b) your Confidential Information shall include, without limitation, the Customer Data; and (c) Confidential Information shall not include any information that: (x) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (y) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (z) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party.
8.2 Confidentiality. The Receiving Party shall not (i) use any Confidential Information of the Disclosing Party for any purpose other than to exercise its rights or to perform its obligations under this Agreement, or (ii) disclose, publish, or disseminate Confidential Information of the Disclosing Party to anyone other than the Receiving Party’s personnel (including employees, contractors and consultants) who have a need to know the Confidential Information for the purposes set forth in this Agreement and who are bound by a written agreement that prohibits unauthorized disclosure or use of Confidential Information that is at least as protective of the Confidential Information as the Receiving Party’s obligations hereunder. Notwithstanding the foregoing, you acknowledge that the Service is not, at this time, designed to protect uploaded Customer Data in accordance with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”), or similar data protection laws and regulations, and you agree that you will not upload any Customer Data or other information or content that is governed by such laws to the Service and that R-Brain shall have no liability to you or any third party with respect to storage, use, or disclosure of such Customer Data or other information or content in violation of such laws. Notwithstanding the foregoing, the Receiving Party shall have the right to share the existence and nature of this Agreement with potential investors or acquirers, or with such Party’s attorneys, accountants, bankers, or other professional advisors in connection with a financing, merger, acquisition, corporate reorganization, consolidation, or sale of all or substantially all of its assets, or as required by law.
8.3 Feedback. R-Brain shall have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you (“Feedback”). You are not required provide Feedback. Any Feedback you choose to provide is provided on a non-confidential basis, notwithstanding any indication to the contrary in any accompanying communication.
8.4 Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information.
8.5 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by law, provided that the Receiving Party shall make reasonable efforts to provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to obtain protective treatment of the Confidential Information.
9. Representations and Warranties.
9.1 By R-Brain. R-Brain represents and warrants to you that it has all necessary rights, power, and authority to enter into this Agreement and provide the Service to you in accordance with the terms of this Agreement without any conflict or breach of any contract or obligation to any third party.
9.2 By You. You represent and warrant to R-Brain that: (i) you have the necessary rights, power, and authority to enter into this Agreement without any conflict or breach of any contract or obligation to any third party, and to use and to permit the use of, the Customer Data, and other materials and information used, stored or processed in the course of using or permitting the use thereof in connection with the Service, (ii) you shall not transfer any personal data, personal information, or personally identifiable information to R-Brain without the consent of the individual(s) to whom such information relates and (iii) you are in compliance with, and shall not violate any applicable law or policy, including without limitation privacy and data protection laws and regulations and your internal privacy policies, in connection with the collection, use or processing of personal data, personal information, or personally identifiable information, the Customer Data, and any other materials used in connection with the Service. In the event of a breach or reasonably anticipated breach of the foregoing warranties, in addition to any other remedies available at law or in equity, R-Brain will have the right to immediately, in R-Brain’s sole discretion, suspend your access to any related Service if deemed reasonably necessary by R-Brain to prevent any liability accruing to it.
9.3 Disclaimer. THE FOREGOING REPRESENTATIONS AND WARRANTIES SHALL BE THE PARTIES’ SOLE REPRESENTATIONS AND WARRANTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT AS EXPRESSLY STATED IN SECTION 9.1, THE SERVICES ARE PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, R-BRAIN HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY, RESULTS, QUALITY, PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES SHALL BE ERROR-FREE OR UNINTERRUPTED.
10. Limitations of Liability.
10.1 Exclusions. EXCEPT WITH RESPECT TO ANY MATERIAL BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY HEREUNDER FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Maximum Liability. EXCEPT FOR EACH PARTY’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 11 OR CUSTOMER’S BREACH OF SECTIONS 2.3, 2.5, OR 6, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER TO R-BRAIN FOR THE SERVICES GIVING RISE TO THE APPLICABLE LIABILITY DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
10.3 Basis of the Bargain; Failure of Essential Purpose. You acknowledge that R-Brain has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the Parties. The Parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
11.1 By R-Brain.
(a) R-Brain shall, at its own expense, defend or at its option settle any third party claim (“Claim”) brought against you to the extent it alleges that your use of the Service in accordance with this Agreement infringes any third party’s U.S. copyrights or trade secret rights; provided that you provide R-Brain with (i) prompt written notice of such Claim; (ii) sole control over the defense and settlement of such Claim; and (iii) all available information and assistance reasonably requested by R-Brain, at R-Brain’s expense, to settle and/or defend any such Claim.
(b) In the event any such Claim is brought or threatened, R-Brain may, at its sole option and expense: (i) procure for you the right to continue to use the Service; (ii) modify or amend all or a portion of the Service, or replace all or a portion of the Service with other service having substantially the same or better capabilities; or (iii) if R-Brain determines that the foregoing are not feasible on commercially reasonable terms, terminate this Agreement in whole or in part, and refund to you a prorated portion of any Subscription Fees paid in advance for any Services not provided as a result of such termination.
(c) R-Brain shall have no obligation to you under Section 11.1 to the extent a Claim arises from (i) your breach of this Agreement; (ii) the Customer Data; (iii) the combination of the Service with any of your products, services, data, hardware, or business process; or (iv) implementation of any of your specifications or requirements.
(d) The foregoing provisions of section 11.1 state the entire liability of R-BRAIN, and your sole remedy, with respect to any actual or alleged claim of infringement or misappropriation of intellectual property rights.
11.2 By You. You shall, at your own expense, indemnify and hold harmless R-Brain against all losses, costs and expenses arising out of all claims against R-Brain to the extent caused by Customer Data, or alleging any fact which, if true, would constitute a breach of any warranties set forth in Section 9.2; provided that R-Brain provides you: (i) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) proper and full information and assistance, at R-Brain’s expense, to settle and/or defend any such claim.
12. Term and Termination.
12.1 Term. The initial term of this Agreement shall commence on the date you first accept this Agreement or use the Service and shall remain in force until terminated in accordance with this Agreement (the “Term”).
12.2 Termination. R-Brain may, at its sole discretion, terminate this Agreement and your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, including if you violate any provision of this Agreement. You may terminate your account and this Agreement at any time by contacting customer service at [firstname.lastname@example.org].
12.3 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (a) R-Brain may immediately cease providing the Service hereunder; (b) any and all payment obligations of you under this Agreement will become due immediately; (c) within thirty (30) days after such expiration or termination, each Party shall return the tangible embodiments of the other Party’s Confidential Information in its possession and shall not retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
12.4 Survival. The following provisions (and such other provisions that by their express terms survive expiration or termination of this Agreement) will survive any expiration or termination of the Agreement: Sections 2.4, 2.5, 2.6, 4.4, 4.5, 5.11, 5.12, 6, 8, 9, 10, 11, 12.3, 12.4, 13 and 14.
12.5 Modification of the Service. R-Brain reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
13. Miscellaneous Provisions.
13.1 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 acts of war, acts of God, labor shortages or disputes, governmental acts, or failure or degradation of the Internet or telecommunications services. The delayed Party shall give the other Party prompt notice of such cause, and shall use its reasonable commercial efforts to promptly correct such failure or delay in performance.
13.2 Marketing. The Parties anticipate that R-Brain will have an opportunity to refer to you as a customer in R-Brain’s marketing materials and on its website, and the Parties shall discuss in good faith the appropriate timing thereof.
13.3 Government Regulations. Each Party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.
13.4 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles. Except as provided in Section 14, any dispute arising out of this Agreement will be subject to the exclusive jurisdiction of the state courts located in San Francisco, California and the federal courts of the United States in the Northern District of California, and each Party consents to the personal jurisdiction thereof and waives any right it may otherwise have to challenge the convenience or appropriateness of such forums.
13.5 Severability; Waiver. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision 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 shall remain in effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party.
13.6 Construction. The Parties acknowledge and agree that they have had the opportunity to discuss this Agreement with and obtain advice from their legal counsel, have had sufficient time to, and have carefully read and fully understand all the provisions of this Agreement, and are knowingly and voluntarily entering into this Agreement. Therefore, 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.
13.7 Assignment. Neither Party shall have the right to assign this Agreement, in whole or in part, or any of its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other Party, except that each Party may assign this Agreement as part of a corporate reorganization, upon a change of control, consolidation, divestiture, merger, or sale of all or substantially all of its assets related to this Agreement. Any attempted assignment or delegation in violation of the foregoing will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.
13.8 Independent Contractors; Subcontractors.
(a) R-Brain and you are independent contractors. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between R-Brain and you. Neither R-Brain nor you will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
(b) R-Brain shall have the right to use such subcontractors and third parties as it deems necessary to carry out its duties under this Agreement.
13.9 Entire Agreement. The terms and conditions of any documents referenced herein are incorporated into the terms and conditions of this Agreement, and together with these terms constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersede and replace any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.
13.11 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
14. Dispute Resolution and Arbitration
14.1 Generally. In the interest of resolving disputes between you and R-Brain in the most expedient and cost effective manner, you and R-Brain agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is less formal 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. This 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. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND R-BRAIN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
14.2 Exceptions. Despite the provisions of Section 14.1, 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) to file suit in a court of law to address an intellectual property infringement claim.
14.3 Arbitrator. Any arbitration between you and R-Brain will be settled under the Federal Arbitration Act, and 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 R-Brain.
14.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). R-Brain’s address for Notice is: R-Brain, Inc., 182 Howard St. #319, San Francisco, CA 94105. 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 will make 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, you or R-Brain may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or R-Brain must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, R-Brain will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any, subject to the limitations of liability contained herein; (ii) the last written settlement amount offered by R-Brain in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
14.5 Fees. If you commence arbitration in accordance with this Agreement, R-Brain will reimburse you for your payment of the filing fee, unless your 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 San Francisco, California, but if the claim is for $10,000 or less, you 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 your billing address. If the arbitrator finds that either the substance of your 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, you agree to reimburse R-Brain for all monies previously disbursed by it that are otherwise your 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.
14.6 No Class Actions. YOU AND R-BRAIN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and R-Brain 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.
14.7 Modifications to this Arbitration Provision. If R-Brain makes any future change to this arbitration provision, other than a change to R-Brain’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to R-Brain’s address for Notice, in which case your account with R-Brain will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
14.8 Enforceability. If Section 14.6 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 14 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 13.4 will govern any action arising out of or related to this Agreement.