LEGAL NOTICE: ANY ENTITY OR PERSON ACCESSING OR USING THESE SOFTWARE SERVICES IS HEREBY NOTIFIED THAT: (a) THE SOFTWARE SERVICES ARE NOT INTENDED TO AND DO NOT PROVIDE ANY LEGAL ADVICE, SERVICES OR OPINIONS, AND SHOULD NOT BE CONSTRUED AS AND SHOULD NOT BE RELIED UPON FOR ANY LEGAL OR COMPLIANCE ADVICE, SERVICES OR OPINIONS IN ANY PARTICULAR CIRCUMSTANCE OR FACT SITUATION; (b) THE SOFTWARE SERVICES MAY NOT REFLECT THE MOST CURRENT LEGAL DEVELOPMENTS OR STATE OF THE LAW; (c) NO ACTION SHOULD BE TAKEN OR NOT TAKEN BASED OR IN RELIANCE ON THE SOFTWARE SERVICES, AND BRAINTRACE, INC. AND ITS LICENSORS SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACTION TAKEN OR NOT TAKEN BASED OR IN RELIANCE ON THE SOFTWARE SERVICES TO THE FULLEST EXTENT PERMITTED BY LAW; (d) AN ATTORNEY SHOULD BE CONTACTED FOR ANY ADVICE NEEDED ON ANY SPECIFIC LEGAL ISSUES; (e) NOTHING IN OR ASSOCIATED WITH THE SOFTWARE SERVICES OR THIS SOFTWARE SERVICES AGREEMENT IS ANY OFFER TO LEGALLY REPRESENT ANY ENTITY OR PERSON NOR IS INTENDED TO CREATE OR ESTABLISH ANY ATTORNEY‑CLIENT RELATIONSHIP; AND (f) AN ATTORNEY-CLIENT RELATIONSHIP MAY ONLY BE ESTABLISHED THROUGH DIRECT ATTORNEY‑TO‑CLIENT COMMUNICATION THAT IS CONFIRMED BY THE EXECUTION OF AN ENGAGEMENT AGREEMENT BETWEEN AN ATTORNEY AND CLIENT.
THIS SOFTWARE SERVICES AGREEMENT (“AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH BRAINTRACE, INC. (“BRAINTRACE”) GRANTS TO YOU (“LICENSEE”) THE RIGHT TO ACCESS AND USE THE SOFTWARE SERVICES. AS USED IN THIS AGREEMENT, LICENSEE SHALL MEAN ONLY A SINGLE ENTITY THAT THE INDIVIDUAL ACCEPTING AND AGREEING TO THIS AGREEMENT REPRESENTS AND PROVIDES SERVICES TO AND IS ACCEPTING AND AGREEING TO THIS AGREEMENT FOR AND ON BEHALF OF, AND DOES NOT INCLUDE ANY OTHER ENTITY, SUBSIDIARY OR AFFILIATE, ALL OF WHICH ARE EXCLUDED FROM THE DEFINITION OF LICENSEE AND THIS AGREEMENT. IF LICENSEE DOES NOT ACCEPT AND AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, THEN BRAINTRACE IS UNWILLING TO GRANT ACCESS TO AND USE OF THE SOFTWARE SERVICES TO LICENSEE, LICENSEE IS NOT GRANTED ANY RIGHT TO ACCESS OR USE THE SOFTWARE SERVICES, AND LICENSEE IS PROHIBITED FROM ACCESSING OR USING THE SOFTWARE SERVICES IN ANY MANNER WHATSOEVER. BY LICENSEE ACCESSING OR USING THE SOFTWARE SERVICES IN ANY MANNER WHATSOEVER, LICENSEE SHALL BE DEEMED TO HAVE ACCEPTED AND AGREED TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT. IF LICENSEE DOES NOT ACCEPT AND AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, AND LICENSEE HAS PAID THE APPLICABLE FEE TO ACCESS AND USE THE SOFTWARE SERVICES TO BRAINTRACE PRIOR TO LICENSEE HAVING HAD THE OPPORTUNITY TO REVIEW, ACCEPT AND AGREE TO THIS AGREEMENT, THEN LICENSEE SHOULD CONTACT BRAINTRACE FOR A REFUND OF SUCH FEE.
IN CONSIDERATION OF THE PREMISES AND MUTUAL COVENANTS SET FORTH IN THIS AGREEMENT, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, BRAINTRACE AND LICENSEE AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
- Access. Subject to the terms and conditions of this Agreement and only during the Term (as defined below) of this Agreement, Braintrace will provide Licensee with access to and use of, on a non-exclusive, non-transferable, non-sublicensable, limited, software-as-a-service (SaaS) basis through a Braintrace designated web portal, the Braintrace proprietary software services known as Intelligent GDPR along with certain Braintrace designated documentation for such software services (hereinafter collectively referred to as the “Software Services”), strictly for Licensee’s internal business purposes under the terms and conditions of this Agreement.
- Restrictions. Licensee shall not directly or indirectly resell, relicense, export, re-export, distribute, transfer or otherwise make available, the Software Services to any third party or person in any manner whatsoever. Licensee acknowledges and agrees that its access to and use of the Software Services shall be strictly through a Braintrace designated web portal and Licensee shall have no right or license hereunder to download or install the Software Services or to possess physical copies the Software Services. Licensee acknowledges and agrees that the Software Services shall be used strictly for Licensee’s internal business purposes and shall not be accessed or used by Licensee for or on behalf of or made available by Licensee in any way to any Licensee customer, client, supplier, or any other third party or person. Licensee acknowledges and agrees that Braintrace and its licensors have no obligation or responsibility whatsoever to provide any support, maintenance, technical assistance or any other services for or in connection with the Software Services or under this Agreement.
- Ownership. All right, title and interest in and to the Software Services, including without limitation all Intellectual Property (as defined below) rights in relation thereto, shall at all times remain with Braintrace or its licensors. Braintrace or licensors reserves all rights not expressly granted. As used in this Agreement, “Intellectual Property” shall mean: (a) patents, patent applications and statutory invention registrations; (b) trademarks, service marks, trade dress, logos, trade names, corporate names, domain names, and other source identifiers; (c) copyrights and mask works; (d) trade secrets, including confidential and proprietary information and know-how; and (e) any other proprietary rights and protections, whether currently existing or hereafter developed or acquired, arising under applicable law, including, in each case, all applications, issuances and registrations with respect thereto.
- Disclaimer. Licensee acknowledges and agrees that: (a) access to and use of the Software Services is granted by Braintrace to Licensee strictly for use by Licensee in accordance with the terms and conditions of this Agreement; and (b) nothing in this Agreement grants to Licensee any right or license, expressly or by implication, to manufacture, duplicate or otherwise copy or reproduce the Software Services in any manner whatsoever. Licensee is prohibited from doing any of the following things to the fullest extent permitted by applicable law: (c) license, sublicense, lease, sublease, sell, distribute, transfer, rent, permit concurrent use of or grant other rights in or to the Software Services to any third party or person; (d) provide access to or use of the Software Services to any third party or person in a computer service business, network or time sharing arrangement; (e) transfer this Agreement or the access to or use of the Software Services to any third party or person; or (f) translate, modify, alter, adapt, create derivative works of, reverse engineer, decompile, disassemble, or attempt to discover or discern the source code for, any part of the Software Services.
- Confidentiality. As used in this Agreement, “Confidential Information” shall mean the Software Services, and any other business or technical information and/or materials disclosed or provided by Braintrace to Licensee under or in connection with this Agreement. Confidential Information of Braintrace is hereby deemed to be proprietary to Braintrace or its licensors and shall be held in trust and confidence by Licensee for, and on behalf of, Braintrace and shall not be disclosed by Licensee or used by Licensee for any purpose other than as strictly permitted under this Agreement, without Braintrace’s express prior written consent in each instance. Licensee shall not transmit, transfer, maintain, remanufacture or duplicate all or any part of the Confidential Information except in accordance with the terms and conditions of this Agreement. Licensee shall be directly liable for the acts or omissions of its employees and agents with respect to such Confidential Information and for their compliance with the obligations of Licensee herein. Upon any termination or expiration of this Agreement, or otherwise at any time upon Braintrace request to Licensee, Licensee shall promptly return to Braintrace, or destroy (if so directed by Braintrace), all Confidential Information, including without limitation all drawings, specifications, data and other tangible materials containing Confidential Information, together with any and all copies thereof. If so requested by Braintrace, Licensee shall certify in writing to Braintrace that all Confidential Information has been so returned or destroyed (as applicable).
- Feedback. If Licensee provides to Braintrace any feedback, suggestion, idea, comment, improvement or any other information regarding or in connection with the Software Services or any other Braintrace products or services (“Feedback”), Licensee hereby grants to Braintrace, under all Licensee Intellectual Property rights, a perpetual, irrevocable, non-terminable, royalty-free, fully paid-up, transferable, sublicensable, unlimited, worldwide license and right to: (a) use, copy, modify, adapt, create derivative works of, translate, distribute, transmit, display, perform, publish, commercialize and otherwise exploit any and all such Feedback, including as part of or in connection with the Software Services and/or any other Braintrace products or services; and (b) develop, make, have made, use, offer for sale, sell, import, export and dispose of the Software Services and/or any other Braintrace products or services that incorporate or utilize such Feedback. Any and all Intellectual Property rights that result or arise from Braintrace’s exercise of the foregoing licenses and rights to Feedback, including any research, development, use or commercialization of such Feedback, shall belong exclusively to Braintrace, and Braintrace shall have no obligation to Licensee whatsoever in relation thereto or in connection therewith.
- Warranty Disclaimer. LICENSEE ACKNOWLEDGES AND AGREES THAT ACCESS TO AND USE OF THE SOFTWARE SERVICES IS BEING PROVIDED TO LICENSEE HEREUNDER STRICTLY ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER. WITHOUT LIMITING THE FOREGOING, BRAINTRACE HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WHATSOEVER ARISING OUT OF, RELATING TO OR RESULTING FROM THE SOFTWARE SERVICES OR THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND THOSE ARISING FROM A COURSE OF DEALING, USAGE, TRADE CUSTOM OR PRACTICE. THE ABOVE DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL ALSO APPLY TO BRAINTRACE’S LICENSORS.
- Limitation of Liability. IN NO EVENT SHALL BRAINTRACE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES WHATSOEVER ARISING OUT OF, RELATING TO OR RESULTING FROM THE SOFTWARE SERVICES OR THIS AGREEMENT. BRAINTRACE’S ENTIRE AGGREGATE LIABILITY FOR ANY DAMAGES OR LOSSES WHATSOEVER ARISING OUT OF, RELATING TO OR RESULTING FROM THE SOFTWARE SERVICES OR THIS AGREEMENT SHALL IN ALL CASES BE LIMITED TO DIRECT DAMAGES ONLY WHICH SHALL NOT EXCEED THE TOTAL FEE AMOUNTS PAID BY LICENSEE TO BRAINTRACE UNDER THIS AGREEMENT. THE LIMITATIONS OF LIABILITY ABOVE SHALL APPLY: (a) REGARDLESS HOW THE DAMAGES OR LOSSES WERE CAUSED; (b) REGARDLESS OF ANY THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY); (c) TO ANY LOST PROFITS OR LOST OR DAMAGED DATA; (d) EVEN IF BRAINTRACE HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES OR LOSSES; (e) NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (f) TO BRAINTRACE’S LICENSORS.
- Term. This Agreement is effective as of the earliest date of Licensee accessing or using the Software Services and shall remain in effect for until terminated as provided for herein (“Term”). Braintrace may terminate this Agreement immediately upon written notice to Licensee if Licensee is in breach of any of the provisions of this Agreement and such breach remains uncured ten (10) days following written notice of such breach by Braintrace to Licensee. Upon any termination or expiration of this Agreement, Licensee shall immediately cease all access to and use of the Software Services. The following Sections of this Agreement shall survive any termination or expiration of this Agreement: Sections 3 through 11 inclusive.
- Export Restrictions. Licensee acknowledges that the Software Services may be subject to regulation by agencies of the U.S. Government, including without limitation the U.S. Department of Commerce, which prohibit export or diversion of certain goods to certain countries. Any and all obligations of Braintrace to provide access to or use of the Software Services is subject in all respects to such U.S. laws and regulations as shall from time-to-time govern the license and delivery of goods abroad by persons subject to the jurisdiction of the U.S. Licensee shall comply with the Export Administration Regulations and other applicable U.S. laws and regulations governing exports in effect from time-to-time, and without limiting the foregoing, Licensee shall not export or re-export, or otherwise provide access to, the Software Services or any part thereof, or any technical data related thereto or the direct product of such technical data, to any country, or to any national or resident of any country, as to which the U.S. Government has placed an embargo against the shipment of goods, or anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders. Licensee hereby confirms and agrees that Licensee is not a resident or national of, and this transaction is not in any way connected with, any jurisdictions which are prohibited by applicable law. Licensee agrees and confirms that Licensee and this transaction are in full and complete compliance with the applicable laws of Licensee’s jurisdiction, and that Licensee shall not, in any manner whatsoever, either remove, convey, export, re-export or transmit the Software Services from Licensee’s jurisdiction in contravention of applicable law or without Braintrace’s express prior written consent.
- General Provisions.
(a) This Agreement and all matters arising from or in connection with this Agreement shall be governed by the laws of the State of Utah, and applicable U.S. federal law, without giving effect to principles of conflicts or choice of law. Licensee agrees that the state and federal courts located in the State of Utah constitute a convenient forum and Licensee submits to the exclusive and personal jurisdiction and venue of such courts located in Salt Lake County, Utah. Notwithstanding the foregoing, Braintrace may apply to any court of competent jurisdiction to enforce or protect its Intellectual Property rights and/or Confidential Information, including without limitation to obtain injunctive or other equitable relief, without breach of this Section and without any abridgement of the powers of the courts set forth above. In any litigation or legal proceeding involving Braintrace arising from or in connection with this Agreement, if Braintrace is the prevailing party in any such litigation or legal proceeding then Braintrace shall be entitled to recover its costs, expenses, and attorneys’ fees in any such litigation or legal proceeding, in addition to any other relief or remedy to which Braintrace may be entitled or granted.
(b) Nothing contained in this Agreement shall be construed as creating any agency, joint venture, partnership, franchise or any other form of joint enterprise between the parties hereto. The relationship between the parties hereto shall at all times be that of independent contractors. Neither party hereto shall have authority to contract for or bind the other party hereto in any manner whatsoever.
(c) Any notices under or in connection with this Agreement between the parties hereto shall be in writing and shall be delivered personally, by first class mail (return receipt requested), or by prepaid express courier, and are effective upon receipt by the other party hereto. All such notices shall be addressed to the other party hereto at the main business address for such party, or at such other address as such party may give notice of in accordance with the foregoing notice requirements.
(d) Licensee shall not issue any press release, or similar document, or other public announcement respecting Braintrace or this Agreement without the express prior written consent of Braintrace.
(e) Braintrace shall not be liable or responsible for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control, including without limitation acts of God, man-made or natural disasters, earthquakes, fire, riots, Internet, telecommunications or power failures, failure or delay of suppliers, flood, strikes, or acts of war.
(f) Neither party hereto shall assign or transfer this Agreement, or any of its licenses, rights or obligations under this Agreement, without the express prior written consent of the other party hereto. Notwithstanding the foregoing, Braintrace may assign or transfer this Agreement, and any of Braintrace’s licenses, rights or obligations under this Agreement, without notice to or consent of Licensee at any time to any parent, affiliate or subsidiary of Braintrace, or to any third party, including to any third party who acquires the assets or shares of Braintrace. Any assignment or transfer of this Agreement, or any of the licenses, rights or obligations under this Agreement, in violation of the foregoing is void.
(g) Any provision of this Agreement held to be invalid or unenforceable by a court of competent jurisdiction shall, as to such jurisdiction, be severed from this Agreement and ineffective to the extent of such invalidity or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
(h) The delay or failure by either party hereto to exercise or enforce any of its rights under this Agreement shall not constitute or be deemed to be a waiver of such party’s right to enforce those rights or any other rights, nor shall any single or partial exercise of any such right preclude such party from any other or further exercise thereof or the exercise of any other right. No waiver of any provision of this Agreement shall be effective unless and to the extent it is expressly stated in writing signed by the party hereto against whom it is sought to be enforced.
(i) No right or remedy of Braintrace in this Agreement is exclusive of any other right or remedy that may be available to Braintrace under this Agreement, at law or in equity, but rather each such right and remedy of Braintrace shall be cumulative of every other right and remedy of Braintrace under this Agreement, at law or in equity.
(j) Except as otherwise expressly provided in this Agreement or unless the context herein otherwise requires, in this Agreement: (i) the terms herein include the plural as well as the singular and vice-versa; (ii) words importing gender include all genders; (iii) any reference to a “Section” refers to a Section of this Agreement; (iv) all references to this Agreement and the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision hereof; (v) all Section headings are for convenience of reference only and shall not affect the interpretation or construction of this Agreement; (vi) the words “including,” “included” and “includes” shall mean inclusion without limitation; and (vii) and any legal or equitable principles that might require or permit the interpretation or construction of this Agreement or any provision hereof against the party hereto drafting this Agreement shall not apply in any interpretation or construction of this Agreement.
(k) The parties hereto acknowledge and agree that this Agreement is an “executory contract” for purposes of Section 365(n) of Title 11 of the United States Code and contains licenses and rights to “intellectual property” as provided in Section 365(n) of Title 11 of the United States Code. Notwithstanding any provision contained within this Agreement to the contrary, if Licensee is under any proceeding under Title 11 of the United States Code and the trustee in bankruptcy of Licensee, or Licensee as a debtor in possession, elects to reject this Agreement, then Braintrace may, pursuant to Sections 365(n)(1) and (2) (or any successor provision(s)) of Title 11 of the United States Code, retain any and all of its license and rights under this Agreement as provided in Section 365(n) of Title 11 of the United States Code to the fullest extent permitted by applicable law.
(l) This Agreement may not be amended or modified except expressly in writing signed by both parties hereto.
(m) This Agreement (including the Legal Notices first set forth above in this Agreement) contains the entire agreement and understanding of the parties hereto relating to the subject matter hereof and merges all prior agreements and understandings of the parties hereto relating to the subject matter hereof.