THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CLIENT’S RIGHTS AND ACCESS TO, AND USE OF, BRAINR’S SOFTWARE-AS-A-SERVICE (“SaaS”) SUBSCRIPTION SERVICES. BY EXECUTING AN ORDER FORM REFERENCING THIS AGREEMENT, CLIENT ACCEPTS AND AGREES TO ALL THE TERMS AND CONDITIONS HEREOF.
Version valid as of: 01 - 01 - 2024
1. Definitions
In addition to the capitalized terms defined upon first use in this Agreement, certain capitalized terms are defined below:
“Add Ons” means optional additional features that can be purchased with certain Subscription Plans.
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly is controlled by or under common control with such Person. For purposes of this Agreement, a Person shall be deemed to have “control” over another Person if: (a) such Person directly or indirectly, on its own or acting through one or more Persons, owns, controls or has power to vote at least 50% of the issued and outstanding voting stock or other equity interest of such other Person; or (b) such Person controls or has the power to control the management or operations of such other Person, including by contract.
“BRAINR” means BRAINR, S.A., Portuguese company with head office at Zona Industrial da Zicofa, Lote 4, Cova das Faias, 2415-314 Leiria, Portugal, with the share capital of € 100,000.00 (one hundred thousand euros), registered in the commercial registry office with the sole registration and legal entity number 516740610 or such other Affiliate of BRAINR, S.A. that is the Party agreeing to the terms of this Agreement as BRAINR as indicated in the applicable Order Form executed or accepted by BRAINR, S.A. or a relevant Affiliate thereto.
“BRAINR Software” refers to the specific software applications (e.g., Android app, web application) that the Client can interact with to access BRAINR’s SaaS Subscription Services. The software includes native applications (like the Android app available on the Play Store) and the web-based application accessible via a browser.
“Client” means the Party entering into this Agreement with BRAINR, as identified in the Order Form.
“Confidential Information” refers to non-public information that either Party may obtain from the other or have access to by virtue of this Agreement, including, but not limited to, each Party’s data and each Party’s proprietary software and computer operations, code, inventions, algorithms, business concepts, workflow, marketing, financial, business and technical information, the terms and pricing under this Agreement, authentication credentials associated with the use of the SaaS Subscription Services, Personal Data, and all information either clearly identified as confidential or that is of a nature that a reasonable person would understand to be confidential.
“Direct Damages” means damages that are the natural and probable consequence of the breach, excluding all indirect, incidental, special, punitive, or consequential damages as defined in Section 14.1.
“Documentation” means the online user guides, documentation and help and training manuals for the SaaS Subscription Services, as made available by BRAINR from time to time via https://help.brainr.com.
“Fees” means the amount to be paid for the SaaS Subscription Services as detailed in the applicable Order Form.
“Effective Date” means the effective date of the Order Form, as specified therein.
“Force Majeure Event” means any event that derives from acts of God, fires, floods, storms, explosions, earthquakes, acts of war or terrorism, acts of hacking or piracy beyond control under the best security standards, riots, insurrection, pandemic, intervention of any government or authority or any other reason where the circumstances are beyond the reasonable control of a Party and not attributable to such Party’s negligence or intentional acts or omissions.
“Intellectual Property” means any patents, patent rights, design rights, copyrights, database rights, trade secrets, know-how, trademarks, trade names, service marks, and other intellectual property embodied in the foregoing, and all applications and rights to apply for registration or protection rights pertaining thereto, in existence at the date hereof or created in the future. Rights regarding Intellectual Property shall be referred to as “Intellectual Property Rights”.
“Interface” as used in an Order Form means a device that runs BRAINR’s SaaS Subscription Services (PCs, tablets, picking guns, or other devices), devices that interface with the software (machines, printers, scales), or other software that interfaces with BRAINR (ERPs, print servers, etc.) in any given month.
“Order Form” means an order form executed by the Parties with respect to the SaaS Subscription Services that incorporates by reference this Agreement, including addendums and amendments thereto, that are executed or accepted by Client from time to time. The terms of this Agreement shall be deemed incorporated by reference into each Order Form. The term “Order Form” specifically excludes any terms on Client’s purchase order that are additional to, or inconsistent, with the terms of this Agreement or the applicable Order Form issued by BRAINR.
“Party” means Client or BRAINR and “Parties” means, collectively, both parties to this Agreement.
“Permitted Purpose” means the use, in accordance with the Documentation and the terms of this Agreement (including any applicable usage limits set forth in the Order Form) of the SaaS Subscription Services solely for Client’s own internal business purposes.
“Personal Data” has the meaning as described in the applicable data protection laws and shall include, without limitation, any data or information (regardless of the medium in which it is contained and whether alone or in combination) that relates to an identified or identifiable natural person.
“Person” means any individual, corporation, limited liability company, partnership, trust, joint stock company, business trust, unincorporated association, joint venture, or other form of business or legal entity.
“SaaS Offerings” means BRAINR’s suite of SaaS products, plans, add-ons, and any associated features or services as described in the applicable Order Form. SaaS Offerings include but are not limited to SaaS Subscription Services, Subscription Plans, and Add-Ons.
“SLA” means BRAINR’s standard service level agreement attached hereto as Annex 1 and incorporated by reference.
“Staff” means the employees, agents, or contractors of a Party, Affiliate, or other person.
“Subscription Term” means the initial Term for which Client has contracted to subscribe to the SaaS Subscription Services as specified in the Order Form, along with each renewal term of Client’s subscription pursuant to Section 7.
“Subscription Plans” means the specific plan of SaaS Subscription Services purchased by the Client, as detailed in the applicable Order Form, which may include limitations or entitlements regarding features, functionality, support levels, usage limits, and access rights.
“SaaS Subscription Services” means the provision of access to BRAINR’s generally commercially available SaaS offering, including the right to use the SaaS Subscription Services during the Subscription Term, along with any associated support, updates, and maintenance services, as specified in the applicable Order Form.
“Support” means the technical assistance, maintenance, and update services provided by BRAINR for the SaaS Subscription Services and BRAINR Software, as further detailed in the SLA.
“User” means an individual employee, Staff, Client or Consultant of Client or of any Affiliate of Client, who is authorized by Client to use the SaaS Subscription Services for the Permitted Purpose, regardless of whether or not the individual is actively using the SaaS Subscription Services at any given time and to whom Client (or BRAINR at Client’s request) has supplied a user identification and password, provided that no Authorized Users may be, nor work for a direct or indirect competitor of BRAINR.
2. Scope of the Agreement
2.1. BRAINR provides the SaaS Subscription Services described in the applicable Order Form(s).
2.2. BRAINR makes its SaaS Subscription Services available on a subscription basis and will provide Client with access to the SaaS Subscription Services in accordance with the terms and conditions set forth in this Master Subscription Agreement (“Agreement”) and the terms outlined in the Order Form for each Subscription Term.
2.3. The specific SaaS Subscription Services contracted by the Client, including the selected Subscription Plan and any potential Add-Ons, will be specified in the Order Form, as expressly specified in the Order Form, which shall include all applicable conditions, usage limits, and Fees.
2.4. Each Order Form is deemed to be a discrete contract, separate from each other Order Form unless expressly stated otherwise in the applicable Order Form.
2.5. If Client also purchases professional services, such professional services shall be governed exclusively by BRAINR’S Professional Services Agreement. Unless otherwise stated in the PSA or Order Form, deliverables do not modify the scope of the SaaS Subscription Services.
3. Provision and Use of Subscription Services
3.1. During the applicable Subscription Term, BRAINR shall make available the SaaS Subscription Services to Client on the terms and subject to the conditions set forth in this Agreement.
3.2. BRAINR is responsible for the deployment, operation, management, and hosting of the SaaS Subscription Services. BRAINR may provide the Services using third-party hosting providers and subprocessors. BRAINR remains responsible for their performance and compliance.
3.3. During the Subscription Term, Client is granted a limited, non-exclusive, non-transferable right to access and use the BRAINR Software solely to access the Services, in accordance with this Agreement and the Documentation.
3.4. Client is responsible for all hardware, software, connectivity and related infrastructure required for Client to access and use the SaaS Subscription Services. Client is responsible for meeting the minimum system, browser, and network requirements described in the Documentation. BRAINR is not responsible for issues caused by Client’s environment or third-party services outside BRAINR’s control.
3.5. BRAINR shall use commercially reasonable efforts to ensure that the SaaS Subscription Services are available for use by Client in accordance with the SLA and subject to the remedies specified therein. Nothing in this Section limits BRAINR’s right to perform planned or emergency maintenance as described in the SLA.
3.6. Client is solely responsible for the security and proper creation, use, and timely termination of all User IDs, passwords, API keys, and other security credentials used in connection with the SaaS Subscription Services and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to unauthorized Persons. Client shall immediately inform BRAINR if there is any reason to believe that a user ID, password, or any other security device has or is likely to become known to any Person not authorized to use it or is being or is likely to be used in an unauthorized way. BRAINR reserves the right (at its sole discretion) to require Client to change any or all of the User IDs, passwords, or other security devices used by Client in connection with the SaaS Subscription Services, and Client shall promptly comply with any such requirement.
3.7. Client is solely responsible for its relationships with all Users of Client, for their use of the SaaS Subscription Services, and for ensuring that they comply with all the terms and conditions of this Agreement. Any violation of the terms and/or conditions of this Agreement by a User of Client shall be deemed to be a violation by Client of such terms and conditions.
3.8. BRAINR may suspend the Services or an affected portion immediately where reasonably necessary to address a security risk, prevent fraud or abuse, or comply with law. BRAINR will limit the suspension to what is strictly necessary, notify Client without undue delay, and restore access promptly once the issue is resolved.
4. Rights and Limitations
4.1. Subject to the terms and conditions of this Agreement (including Client’s payment obligations hereunder), BRAINR grants Client a limited, non-exclusive, non-transferable right to access and use the SaaS Subscription Services and Documentation and to permit Users to access and use the SaaS Subscription Services and Documentation solely for the purpose permitted under this Agreement.
4.2. Client’s access and use of the SaaS Subscription Services is limited to the number of Interfaces specified in the Order Form.
4.3. BRAINR further grants Client the right to make copies of the Documentation solely for Client’s internal business purposes. Documentation may not be distributed to third parties except as expressly permitted for Users under this Agreement.
4.4. BRAINR retains all rights not expressly granted to Client in this Agreement. Except for the rights expressly granted, no other rights are granted by implication or otherwise.
4.5. BRAINR may make Previews or Beta features available at its discretion. Previews are provided AS IS, exclude SLA commitments and warranties, and may be modified or discontinued at any time.
5. Restrictions of Use
5.1. Except as otherwise permitted under this Agreement or with the prior written consent of BRAINR, Client shall not (and shall not permit any third party to):
5.1.1. Transfer to any other Person any of its rights to use the SaaS Subscription Services or BRAINR Software associated with such services;
5.1.2. Provide, disclose, divulge, make available to, or permit use of the SaaS Subscription Services in whole or in part by any Person who is not an authorized User;
5.1.3. Install, use, or attempt to use the SaaS Subscription Services and/or BRAINR Software in any manner that circumvents, disables, or interferes with any technological measures designed to control or restrict access to the SaaS Subscription Services and/or BRAINR Software including attempting to bypass metering, rate limits, or technical controls, or accessing any non-public API or endpoint.;
5.1.4. Remove, modify, or obscure any markings, logos, or notices of BRAINR’s Intellectual Property Rights included in or associated with the BRAINR Software;
5.1.5. Use the SaaS Subscription Services on more Interfaces than the number specified in the applicable Order Form;
5.1.6. Use the SaaS Subscription Services to provide training to third parties or for the purpose of developing, building, or operating any product or service that competes with BRAINR;
5.1.7. Disclose, publish, or share the results of any performance or benchmark tests of the SaaS Subscription Services to any third party without prior written consent from BRAINR;
5.1.8. Use the SaaS Subscription Services in violation of any applicable laws, regulations, or the terms and conditions of this Agreement.
5.1.9. Upload or transmit malware, probe or scan the Services or related infrastructure, or attempt to gain unauthorized access to systems or data.
5.2. Subject to the terms of this Agreement and the applicable Order Form, Client agrees not to use or permit the use of the SaaS Subscription Services to display, store, process or transmit any content that may constitute an infringement of Intellectual Property Rights or otherwise violate applicable laws, ordinances, or regulations. Client remains solely responsible for Client Content and for securing all necessary rights.
5.3. If BRAINR receives information that Client is in violation of any of the foregoing restrictions, BRAINR will notify Client and Client will promptly take appropriate action to resolve such violation.
5.4. If Client does not take the required action in accordance with the above, BRAINR reserves the right but has no obligation, to take remedial action. BRAINR shall have no liability to Client in the event that BRAINR takes such action.
5.5. Client will not share user accounts or credentials, and will promptly disable access for departed personnel.
6. Fees and Payment
6.1. Client will pay to BRAINR, without deduction, the Fees set forth in the applicable Order Form. Unless stated otherwise in the Order Form, Fees for subscriptions are invoiced in advance for each Subscription Term or billing period.
6.2. Fees listed in an Order Form are exclusive of all applicable sales taxes, value-added tax, duties, or any similar fees imposed by applicable law; where required, Client will pay or reimburse BRAINR for all applicable taxes, duties or others imposed by applicable law incurred on the Order Form, notwithstanding BRAINR’s liability for its income taxes, with such taxes, duties or others being charged by BRAINR in addition to its stated Fees and shown separately on the relevant invoice.
6.3. All Fees are payable to BRAINR and due within 14 days from the date of the corresponding invoice or as otherwise set forth in the applicable Order Form.
6.4. Except as otherwise stated in this Agreement, Orders may not be canceled, and payments are non-refundable.
6.5. In the event Client has a reasonable, good faith basis for disputing the Fees due based on BRAINR’s failure to perform its obligations under this Agreement, Client must notify BRAINR of any such disputed Fees on or before the applicable invoice due date and may only withhold payment of that portion of the Fees for which it has a reasonable, good faith basis for dispute.
6.6. The non-payment of any undisputed Fees within the term defined in the applicable Order constitutes a material breach of this Agreement and BRAINR shall have the right to:
6.6.6. Upon 30 days prior written notice, suspend Client’s right to access or use any portion or all of the Subscription Services and/or the provision of Support by BRAINR, until all such due and undisputed amounts and respective interests have been paid; and/or
6.6.7. Exercise its right to terminate this Agreement under Section 7 below (Term and Termination).
6.7. Persistent failure to pay undisputed amounts after suspension and a further 15-day notice may constitute grounds for termination for cause under Section 7.
6.8. If BRAINR engages legal counsel to collect any overdue Fees, Client shall reimburse BRAINR for its reasonable attorneys' fees and collection costs, provided BRAINR prevails in such collection action or Client pays the overdue amount after legal action is initiated.
7. Subscription Term, Termination and Renewal
7.1. The SaaS Subscription Services ordered by Client shall commence on the start date specified in the applicable Order Form and continue in effect until the end date specified in the applicable Order (the “Initial Subscription Term”).
7.2. Each Order Form under the Agreement will specify the Subscription Term for that Order. Client shall timely complete the required paperwork and/or purchase order required for the renewal of its SaaS Subscription Services.
7.3. If the Agreement or the Order provides for automatic renewal, the Subscription Term will automatically renew for a renewal Subscription Term as described in the Agreement or the Order Form, as applicable (“Renewal Subscription Term”).
7.4. If neither the Agreement nor the Order Form provides for automatic renewal, mutual agreement of the Parties and execution by the Parties of a new Order Form will be required to renew the Subscription Term. If required by Client’s internal policies, the issuance of a purchase order by Client will also be required prior to the Renewal Subscription Term becoming effective.
7.5. If Client renews the Subscription Term for an Order Form but is not able to complete the contract paperwork and/or purchase order required for it to be contractually bound to such renewal by the end of the expiring Subscription Term, BRAINR will have the right to assess a late renewal fee equal to five percent of the Fees for the Renewal Subscription Term. These late renewal fees will not be counted or applied towards the applicable SaaS Services Subscription Fees, including any previously agreed limits on price increases or any price uplift caps. If Client does not ultimately renew but has continued to use the SaaS Services Subscription after the expiration of the Subscription Term, the terms of the “Excess Usage of SaaS Service Subscriptions” section below will apply.
7.6. Either Party will have the right to terminate this Agreement immediately upon written notice at any time if the other Party is in material breach of any warranty, material term, or covenant of this Agreement and fails to cure that breach within 30 days after written notice of that breach.
7.7. Either Party may terminate the Agreement immediately if the other Party:
7.7.1. Is dissolved or liquidated or takes any corporate action for such purposes;
7.7.2. Becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
7.7.3. 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;
7.7.4. Makes or seeks to make a general assignment for the benefit of its creditors; or
7.7.5. Applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court or competent jurisdiction to take charge of or sell any material portion of its property or business.
7.8. Upon termination or expiration, all SaaS Subscriptions Services shall be automatically canceled, and Client shall no longer have access to the SaaS Subscription Services.
7.9. If BRAINR terminates this Agreement pursuant to Sections 7.6. above (Termination for Cause) or 7.7. above (Termination for Insolvency), BRAINR shall invoice Client all amounts that were accrued for the terminated SaaS Subscriptions Services prior to such termination, which were not previously invoiced, as well as all sums remaining unpaid under this Agreement. Client will pay such invoices in accordance with the terms of this Agreement.
7.10. In the event Client terminates this Agreement pursuant to Sections 7.6. (Termination for Cause) or 7.7. (Termination for Insolvency), BRAINR shall refund Client any prepaid Fees covering the remainder of the Subscription Term of any SaaS Subscription Services in effect, from the effective date of termination (amortized on a straight-line basis). In no event will termination relieve Client of the obligation to pay all Fees due to BRAINR under this Agreement.
7.11. It is agreed and accepted that termination or expiration does not preclude a Party’s right to resort to other remedies legally available whether or not termination occurs.
8. Excess Usage of SaaS Subscription Services
8.1. In order to enable both BRAINR and the Client to evaluate the level of acceptance of the SaaS Subscription Services by the Client, the Client will cooperate with BRAINR to conduct a secure, remote usage verification. At the end of each calendar month, BRAINR will review the results of each verification with Client and work with Client to ensure the accuracy and optimization of Client’s usage.
8.2. If at any time during the Subscription Term the Client has exceeded its subscribed usage rights (which are limited to the number of permitted Interfaces specified in the applicable Order Form) for a given month under the applicable Order Form, it is BRAINR’s preference to negotiate and sign a new Order Form with the Client to cover the excess usage rather than charge Client for the excess usage and compliance fees.
8.3. If Client does not enter into a new Order to cover the excess usage, however, BRAINR reserves the right to invoice Client for the excess usage at the then-current list price, from the date of the first excess usage through the end of the then-current Subscription Term and/or the date of last use if used after termination or expiration of the Subscription Term. If Client does not settle the excess usage within 60 days of written notification from BRAINR, either by entering into a new Order Form to cover the excess usage or by paying an invoice for the excess usage, then, in addition to the Fees owed for the excess usage, BRAINR may assess a compliance fee equal to 50% percent of the Fees due for the excess usage, in recognition of the additional costs incurred by BRAINR due to Client’s non-compliance.
9. Intellectual Property Rights
9.1. For purposes of this Agreement, BRAINR and its licensors own all right, title, and interest in and to the SaaS Subscription Services, the BRAINR Software, the Documentation, configurations, updates, derivatives, and all improvements thereto, including all associated Intellectual Property Rights. No rights are granted to Client except as expressly set forth in this Agreement and the applicable Order Form. Any grant of rights by BRAINR will be expressly stated in this Agreement or the applicable Order Form.
9.2. Client retains all right, title, and interest in and to Client Content. Client grants BRAINR and its subprocessors a non-exclusive, worldwide, royalty-free license to host, copy, transmit, display, and process Client Content solely to provide the Services and Support, to maintain security and business continuity, and to improve performance and reliability of the Services. Model training restriction: BRAINR will not use Client Content to train generalized machine learning models or for product development unrelated to providing the Services without Client’s prior written consent.
9.3. Client shall not acquire any proprietary right, title or interest in or to any Intellectual Property Rights in the SaaS Subscription Services and the BRAINR Software, or the Documentation by virtue of this Agreement or use of the Services.
9.4. Client and its Affiliates, and their respective employees and Users may, in their sole discretion, provide suggestions, ideas, or feedback regarding the Services, BRAINR may use, copy, modify, sublicense, and commercialize such feedback without restriction or obligation, on a perpetual, irrevocable, worldwide, royalty-free basis. This clause does not grant BRAINR any rights to Personal Data or Client’s Confidential Information.
9.5. Notwithstanding 9.4, where feedback contains Personal Data or Client’s Confidential Information, BRAINR’s use will be subject to this Agreement’s confidentiality obligations and applicable data protection laws.
9.6. BRAINR and its Affiliates may collect and use de-identified and aggregated usage data related to the use and performance of the Services for troubleshooting, analytics, benchmarking, service improvement, and compliance verification. BRAINR will implement technical and organizational measures designed to prevent re-identification and will not disclose Client as the source of such data without consent.
9.7. Subject to Section 19.4 and Client’s brand guidelines, Client grants BRAINR a limited, revocable, non-exclusive, non-transferable, royalty-free license to display Client’s name and logo solely to identify Client as a customer.
9.8. Except to the extent permitted by applicable law notwithstanding this restriction, Client will not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying ideas or algorithms of the BRAINR Software or Services.
9.9. If the Services become, or in BRAINR’s opinion are likely to become, the subject of an Infringement Claim, BRAINR may implement updates, replacements, or workarounds of substantially equivalent functionality. The remedies set forth in Section 13 are Client’s exclusive remedies for infringement, without limiting BRAINR’s rights under this Section.
10. Confidential Information
10.1. Each Party shall keep all Confidential Information of the other Party in confidence, use it solely to perform its obligations and exercise its rights under this Agreement, and not disclose it to any third party except to its and its Affiliates’ employees, contractors, advisors, and subprocessors who have a need to know for such purpose and are bound by confidentiality obligations at least as protective as those herein. Each Party will protect Confidential Information using at least a reasonable standard of care and no less than the measures it uses to protect its own similar information. These obligations survive for five (5) years after termination or expiration; with respect to trade secrets, they survive for so long as such information remains a trade secret under applicable law.
10.2. The Parties shall not be obligated to the above confidentiality obligations concerning Confidential Information that:
10.2.1. Is or becomes a part of the public domain through no act or omission of the receiving Party;
10.2.2. Was in the receiving Party’s lawful possession without restriction prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party;
10.2.3. Is lawfully disclosed to the receiving Party by a third party without restriction on the disclosure; or
10.2.4. Is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
10.3. Subject to 10.4. below, a Party may disclose Confidential Information of the other Party:
10.3.1. In response to a valid order or request by a court or other governmental or regulatory body;
10.3.2. As otherwise required by law; or
10.3.3. As necessary to establish the rights of either Party under this Agreement.
10.4. The Party seeking to disclose information will promptly give notice to the other Party and allow the other Party to object or to seek a protective order, to the extent permitted by the applicable law.
10.5. Except as otherwise authorized or required in furtherance of the purposes of this Agreement, promptly upon a request by the disclosing Party, the receiving Party will at its option either destroy, and certify destruction in writing, or return to the disclosing Party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof provided that the receiving Party shall be permitted to retain copies of any computer records and files containing any Confidential Information which have been created according to automatic archiving and back-up procedures or retain a back-up copy of such Confidential Information as required by law, rule, regulation or internal compliance policies, in which cases such Confidential Information shall continue to be subject to confidentiality obligations even after the term set out in 10.1. above.
10.6. De-identified and aggregated data that cannot reasonably be used to identify the disclosing Party or its Users is not the disclosing Party’s Confidential Information.
10.7. Failure to promptly enforce the obligations of this Section 10 will not constitute a waiver of such obligations.
11. Personal Data
11.1. The Parties agree not to provide Personal Data to the extent it is not required for the purposes of compliance with obligations under this Agreement.
11.2. In the event BRAINR has access to Personal Data through the execution of this Agreement, it shall act as Client’s data processor for the processing thereof and shall process any Personal Data at all times in full compliance with the applicable data protection laws.
11.3. In the aforementioned event, the Parties shall execute a data processing agreement.
11.4. If any term in this Section 11 conflicts with the DPA, the DPA prevails with respect to the processing of Client Personal Data.
12. Warranties
12.1. BRAINR represents and warrants that:
12.1.1. BRAINR has all necessary rights and authority to grant the rights and accesses to the SaaS Subscription Services as outlined in this Agreement and the applicable Order Form;
12.1.2. The SaaS Subscription Services shall operate in material compliance with the Documentation as updated from time to time by BRAINR; and
12.1.3. Support will be provided in accordance with the SLA.
12.1.4. BRAINR will process Personal Data in compliance with applicable data protection laws and the Data Processing Agreement executed between the parties.
12.2. In the event of a breach of the warranties under 12.1.1. or 12.1.2 above, BRAINR shall, as Client’s exclusive remedy and its sole obligation and entire liability, at its sole option and expense, either: (i) modify or replace the non-compliant portion of the SaaS Subscription Services to bring it into material compliance with the applicable warranty; or (ii) if BRAINR is unable to do so after using commercially reasonable efforts, terminate all or part of the applicable Order Form.
12.3. Upon the aforementioned termination, BRAINR shall refund Client any prepaid Fees attributable to the non-compliant portion of the SaaS Subscription Services for the remainder of the Subscription Term.
12.4. Claims under the warranties provided in 12.1.1 or 12.1.2 above must be submitted by Client in writing within 30 days of first becoming aware of non-compliance with the applicable warranty.
12.5. In the event of a breach of the warranty in 12.1.3 above, the Service Credits described in the SLA shall be BRAINR’ sole obligation and entire liability and Client’s exclusive remedy.
12.6. BRAINR will implement and maintain administrative, physical and technical safeguards to protect Client Content in accordance with industry standards.
12.7. DISCLAIMER OF WARRANTIES
12.7.1. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 12.1 ABOVE, THE SAAS SUBSCRIPTION SERVICES, BRAINR SOFTWARE, AND DOCUMENTATION ARE PROVIDED "AS IS" AND BRAINR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE.
12.7.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRAINR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
12.7.3. BRAINR does not warrant that:
(a) The SaaS Subscription Services will be uninterrupted, error-free, or completely secure;
(b) Any defects or errors will be corrected within a specific timeframe;
(c) The SaaS Subscription Services will meet Client's specific requirements or business needs beyond those expressly described in the Documentation; or
(d) The results obtained from use of the SaaS Subscription Services will be accurate, reliable, or complete.
12.7.4. Client acknowledges that:
(a) The SaaS Subscription Services are dependent on internet connectivity and third-party infrastructure beyond BRAINR's control;
(b) There are inherent security risks in internet-based systems that could result in unauthorized access or data loss despite BRAINR's security measures;
(c) Client is solely responsible for evaluating whether the SaaS Subscription Services meet Client's requirements and for implementing appropriate backup and business continuity procedures; and
(d) There are risks inherent in internet connectivity that could result in the loss of Client's privacy, Confidential Information, or data.
12.7.5. Any features, functionality, or services designated as "Preview," "Beta," "Early Access," or similar are provided AS IS, exclude all warranties set forth in Section 12.1 above, exclude SLA commitments, and may be modified or discontinued at any time without notice.
12.7.6. BRAINR disclaims all warranties with respect to third-party services, software, hardware, or integrations that may be used in connection with or accessible through the SaaS Subscription Services. Client's use of any third-party services is governed by the terms and conditions of such third parties.
13. Indemnification
13.1. During the Subscription Term, BRAINR will defend, or at its option settle, at its own expense, any third-party action against Client, and pay all damages awarded against Client, or that are agreed to in a settlement, to the extent the third-party action is based upon a claim that the SaaS Subscription Services infringe any valid and enforceable patent, copyright, trademark, or trade secret of such third party (an “Infringement Claim”).
13.2. BRAINR will pay those costs and damages that, in connection with an Infringement Claim, are finally awarded against Client or agreed to in a monetary settlement of the Infringement Claim.
13.3. Notwithstanding the foregoing, BRAINR will have no obligation under Sections 13.1. and 13.2. above or otherwise with respect to any Infringement Claim based upon:
13.3.1. Any malfunction or failure attributable to any Interface used by the Client, unless caused by BRAINR;
13.3.2. Any unauthorized use, reproduction, or distribution of any component of the SaaS Subscription Services or the BRAINR Software;
13.3.3. Any unauthorized combination of the SaaS Subscription Services or the BRAINR Software with other products, software, or data not supplied or approved by BRAINR;
13.3.4. Any use of the SaaS Subscription Services or the BRAINR Software for a purpose or in a manner for which it was not designed; or
13.3.5. Any use, reproduction, or distribution of a release of the BRAINR Software other than the most current release made available to Client.
13.3.6. Client Content, data, or materials provided by Client or uploaded to the SaaS Subscription Services by Client or its Users.
13.3.7. Open source software components used in the SaaS Subscription Services, provided BRAINR complies with applicable open source licenses.
13.4. If the SaaS Subscription Services become, or in BRAINR'S opinion is likely to become, the subject of an Infringement Claim, BRAINR may, at its option and expense, either:
13.4.1. Procure for Client the right to continue exercising the rights granted to Client in this Agreement;
13.4.2. Replace or modify the SaaS Subscription Services so that they become compliant and remain functionally equivalent; or
13.4.3. Terminate the SaaS Subscription Services by written notice to Client and refund to Client any prepaid payments covering the remaining Subscription Term.
13.5. Sections 13.1. and 13.2. above state the entire liability of BRAINR and Client’s sole and exclusive remedies with respect to any actual or alleged claim of infringement or misappropriation of Intellectual Property Rights.
13.6. The foregoing obligations are conditioned on the indemnified party:
13.6.1. Notifying the indemnifying party promptly in writing of such third-party action;
13.6.2. Providing the indemnifying party sole control of the defense thereof, and any related settlement negotiations; and
13.6.3. At the indemnifying party’s reasonable request and expense, assisting in such defense.
13.7. The indemnified party’s counsel will have the right to participate in the defense of the claim, beyond assistance requested by the indemnifying party, at the indemnified party’s expense.
13.8. Client shall defend, indemnify, and hold harmless BRAINR from any third-party claims arising from: (a) Client Content; (b) Client's violation of Section 5 (Restrictions of Use); or (c) Client's breach of applicable laws.
14. Limitation of Liability
14.1. To the maximum extent permitted by applicable law, in no event shall either Party be liable to the other for any loss of use, loss of data, interruption of business, or any incidental, indirect, special, punitive or consequential damages (including without limitation loss of profits, goodwill or market value, or cost of procurement of replacement goods or services) arising from this Agreement, whether under theory of contract, tort (including negligence), or otherwise, even if a Party has been advised of the possibility of such damages in advance.
14.2. BRAINR will not be liable for:
14.2.1. Client’s inability to use the SaaS Subscription Services as a result of any valid termination or suspension of the SaaS Subscription Services pursuant to the terms of this Agreement; or
14.2.2. Any unauthorized access to, damage or alteration to, deletion or destruction of, or failure to store or backup, Client content due to Client’s negligent acts or omissions, including failure to maintain credential security, failure to implement Client-side access controls, or failure to follow security guidelines in the Documentation.
14.2.3. Any losses resulting from third-party services, integrations, or Client's technology infrastructure, including network connectivity, hardware failures, or power outages.
14.3. Notwithstanding any other provision in this Agreement, each Party’s total aggregate liability under this Agreement and the other Party’s sole and exclusive remedy for any claim of any type whatsoever shall be limited to Direct Damages in an amount not to exceed the greater of (a) the amounts paid to BRAINR under this Agreement during the 12 months immediately preceding the date of the claim, or (b) the annual value of Fees under the applicable Order Form.
14.4. The limitations of liability outlined in Section 14.1. and 14.4. above will not apply to a Party’s indemnification obligations or Direct Damages due as a result of either Party’s fraud, gross negligence, or willful misconduct.
14.5. No Party shall be liable for or considered to be in breach of this Agreement on account of any failure or delay in the performance of any of its obligations under this Agreement if such failure or delay is due to a Force Majeure Event.
14.6. The Parties agree and accept that the provisions of this Section 14 allocate risks under this Agreement between Client and BRAINR and that BRAINR’s Fees for the SaaS Subscription Services reflect this allocation of risks and limitation of liability.
14.7. The aggregate liability of each Party under this Agreement for all claims arising in any 12-month period shall not exceed the cap set forth in Section 14.3, regardless of the number of claims or the legal theory asserted.
15. Entire Agreement
15.1. This Agreement, including all Order Forms, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
15.2. This Agreement is available at brainr.com/legal/msa and may be updated by BRAINR from time to time to reflect changes in BRAINR's service offerings, operational practices, or applicable legal requirements. BRAINR will provide reasonable notice of material updates. Client's continued use of the SaaS Subscription Services after any such update constitutes acceptance of the revised terms.
15.3. The Client acknowledges and agrees that it has had the opportunity to review this Agreement, including all annexes and referenced documents, and can access and print them for its internal records.
15.4. In the case of conflicts, discrepancies, errors, or omissions between the Agreement and any Order Form, the documents and amendments to them shall take precedence and govern in the following order: (i) any Order Form (concerning that Order Form only); (ii) written amendments to the Agreement executed by both Parties; and (iii) this Agreement.
15.5. Upon execution of any new Order Form, the version of this Agreement in effect as of the new Order Form's Effective Date shall govern all Order Forms between the Parties, including any Order Forms with active Subscription Terms executed prior to such date.
16. Notices
16.1. Any notice, consent, approval, or other communication intended to have legal effect to be given under this Agreement (“Notices”) must be in writing and will be delivered (as elected by the Party giving such notice):
16.1.1. If provided to BRAINR, by email to legal@brainr.com;
16.1.2. If provided to Client: (a) by email to the email address of the signatory to the Order Form; and (b) by copy to any additional notice recipients identified in the Order Form.; or
16.1.3. By registered mail to the Parties’ addresses stated in the applicable Order Form.
16.2. Unless otherwise provided in this Agreement, all Notices will be deemed effective as follows:
(a) If delivered by email: at 09:00 (Western European Time) on the next Business Day after the date of transmission; or
(b) If delivered by registered mail with return receipt: on the date of actual receipt as evidenced by the return receipt, or if delivery is refused, the date of such refusal. If registered mail is sent but no return receipt is received within fifteen (15) days of mailing, the notice shall be deemed effective on the fifth (5th) Business Day after the date of mailing, as evidenced by the mailing receipt.
For purposes of this Section, "Business Day" means any day other than a Saturday, Sunday, or public or national bank holiday in Portugal.
16.3. Either Party may change the address to which Notices shall be sent by giving Notice to the other Party in the manner provided in this Section. Such changes shall be effective five (5) Business Days after Notice is given.
16.4. Notices shall be written in Portuguese or English.
17. Governing Law and Jurisdiction
17.1. This Agreement and all disputes or claims (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with Portuguese Law.
17.2. If a dispute arises from or relates to this Agreement, and if the dispute cannot be settled through direct discussions between the Parties, the Parties agree to submit the dispute to the exclusive jurisdiction, with the exclusion of all others, of the courts of the judicial district of Lisbon, Portugal.
18. Relationships of Parties and Assignment
18.1. The Parties are independent contractors, not agents, affiliates or joint ventures of one another, and do not have any authority to bind the other Party, by contract or otherwise, to any obligation, nor will either Party represent to the contrary, either expressly, implicitly, by appearance or otherwise.
18.2. Client may not assign, transfer, delegate, or otherwise dispose of this Agreement or any Order Form, whether voluntarily or by operation of law, without BRAINR's prior written consent, which BRAINR may grant or withhold in its sole discretion. Any attempted assignment without such consent shall be null and void.
18.3. BRAINR may freely assign or transfer this Agreement, in whole or in part, without Client's consent to any Affiliate of BRAINR, any entity that directly or indirectly controls BRAINR, any entity controlled by an entity that controls BRAINR (including sister companies), any successor entity resulting from a merger, consolidation, or sale of all or substantially all of BRAINR's assets or share capital, or any entity acquiring BRAINR's business related to the SaaS Subscription Services. For purposes of this Section, "control" has the meaning set forth in the definition of "Affiliate" in Section 1.
18.4. If BRAINR assigns this Agreement to a direct competitor of Client, Client may terminate the affected Order Form upon sixty (60) days' written notice. Upon such termination, BRAINR shall refund Client any prepaid Fees for the remainder of the Subscription Term, calculated on a pro-rata daily basis. For purposes of this Section, a "direct competitor" means any entity that directly competes with Client's core business operations in the same geographic markets and product categories.
18.5. In the case of any assignment by BRAINR pursuant to Section 18.3, BRAINR will provide Notice to Client within thirty (30) days following such assignment, and this Agreement and any existing Order Forms shall be binding upon, and inure to the benefit of, the assignees, transferees, and successors of the Parties to this Agreement.
19. General Provisions
19.1. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the Party claimed to have waived.
19.2. No provision of any purchase order or other form employed or provided by Client will supersede, modify, or add to the terms and conditions of this Agreement and any Order Form executed with Client. Any such document relating to this Agreement and any Order Form shall be for administrative purposes only (such as to evidence Client's acceptance of an Order Form and to facilitate internal procurement processes) and shall have no legal effect. In the event of any conflict between a purchase order and this Agreement or an Order Form, this Agreement and the Order Form shall govern.
19.3. The Parties agree that, in connection with the performance of this Agreement, each Party shall comply with all laws applicable to such Party’s respective performance under this Agreement, including without limitation all applicable anticorruption laws, anti-money laundering laws, antitrust laws, economic sanctions laws, export control laws, data protection and data privacy laws, and modern slavery and human trafficking laws.
19.4. Client agrees that BRAINR may use Client’s name and logo and indicate that Client is a client of BRAINR on its website, in any public filings, and through its marketing materials, including but not limited to press releases, case studies, white papers and webinars. Any such attribution will be consistent with Client’s style guidelines or requirements as communicated to BRAINR from time to time.
19.5. Sections and/or Clauses 5 (Restrictions of Use), 7.8. (Effect of Termination), 9 (Intellectual Property Rights), 10 (Confidential Information), 11 (Personal Data), 12 (Warranties), 13 (Indemnification), 14 (Limitation of Liability), 16 (Notices), 17 (Governing Law and Jurisdiction) and 19 (General Provisions) hereunder shall survive termination, without prejudice to other obligations that, pursuant to the applicable law or this Agreement, shall also remain in force after the termination date.
19.6. If any provision of this Agreement is held to be invalid, illegal, or unenforceable under applicable law, such provision shall be reformed to the minimum extent necessary to make it valid and enforceable, or if such reformation is not possible, the provision shall be severed from this Agreement. The remainder of this Agreement shall continue in full force and effect.
19.7. This Agreement and any Order Forms may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Electronic signatures and electronically signed documents shall have the same legal effect as original signatures and documents.
If you have questions or comments about this Master Services Agreement, you may email us at support@brainr.co or contact us by post at:
BRAINR S.A.
Zona industrial da Zicofa
lote 4
2415-314 Leiria
Portugal