This Service Agreement (this “Agreement”) is made by and between Brain Corporation, a California corporation (“Brain”), and the individual or legal entity licensing the Software under this Agreement (the “Customer”). This Agreement governs the use of Brain’s software (the “Software”) and associated services (the “Services”) contained on or relating to any BrainOS® powered product (including any authorized add-ons or accessories to such products) provided under the “Brain” or “BrainOS” trademark (each, a “Robot”) obtained by the Customer from an authorized manufacturer, reseller, or distributor (an “Authorized Seller”).
1. Accepting this Agreement
By the Customer (a) using the Software or the Services, (b) clicking a box indicating acceptance, or (c) executing with Brain or an Authorized Seller a subscription agreement, order document, or other instrument that references this Agreement (a “Service Document”), the Customer agrees to be bound by this Agreement’s terms and conditions. In addition, by accepting this Agreement, the Customer represents that he or she has the authority to bind the Customer (or its employer or other entity on whose behalf the Customer is agreeing) to the terms and conditions of this Agreement.
2. Services
During the subscription period specified in the respective Service Document for the particular Services purchased by the Customer, the Customer will receive such Services as set forth in the then-current applicable schedule for such Services described at https://braincorp.com/service-specific-terms4324/ (the “Service-Specific Terms”). The applicable Service-Specific Terms shall be considered part of this Agreement and incorporated herein by reference.
3. Use of the Software and Services by the Customer
The Customer agrees to be responsible for the operation and use of the Services by the Customer and its employees, agents, contractors, and any transferee or other entity that the Customer permits to use the Robot and/or Services (its “Permittees”). The Customer agrees to use the Robot, Software, or Services only in accordance with (collectively, the “Restrictions on Use”): (a) this Agreement; (b) any applicable law, regulation, or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States, or such other country in which the Customer purchases or uses the Robot); (c) the then-current user manuals, guides, and instructions provided with the Robot, in the Software, or by Brain or by an Authorized Seller (the “Instructions”); and (d) the terms provided in the applicable Service-Specific Terms.
4. License from Brain
- 4.1 License Grant. Subject to the terms of this Agreement, Brain grants the Customer a royalty-free, non-sublicensable, and non-exclusive license, solely during the period when the Customer has access to the Services as provided in Section 2, solely for the Customer’s (and its Permittees’) Use of the Software in the country in which Brain or an Authorized Seller delivered the Robot to the Customer in conjunction with (a) the Robot pre-loaded with the Software that the Customer acquired and (b) the Services. “Use” in this Section 4 shall mean the ability to run or execute the Software through a user interface on the Robot or other interface as provided by Brain in accordance with the Restrictions on Use.
- 4,2 Reservation of Rights. All rights not specifically granted under this Agreement are reserved by Brain and, as applicable, Brain’s licensors. The Software is licensed, not sold. The Customer is permitted to Use the Software only in accordance with the terms of, and only as expressly allowed by, this Agreement. The Customer license confers no title or ownership in the Software and should not be construed as a sale of any rights in the Software. This Agreement also applies to any patches or updates the Customer may obtain for the Software, and to the Software on any Robot that is Used by the Customer.
- 4.3 Intellectual Property. The Customer agrees that Brain, its affiliates, and its licensors own all legal right, title and interest in and to the Software (including any patches and updates to the Software and all copies), including any Intellectual Property Rights that subsist in the Software. “Intellectual Property Rights” means any and all rights under patent law, copyright law, moral rights, trade secret law, trademark law, and all other proprietary rights. Brain reserves all rights not expressly granted to the Customer. Brain’s Software is protected by the copyright laws of the United States, international copyright treaties and conventions, and other laws of the country in which the Customer purchases or Uses the Robot. The Customer may not: (a) copy, modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the Software or any part of the Software; (b) sell, rent, lease, license, distribute or otherwise transfer, commercialize, or offer or provide a service with any software or device (other than the Robot as provided to the Customer) incorporating the Software or any part of the Software; or (c) infringe the Software in any other manner pursuant to the copyright laws of the United States, international copyright treatises and conventions, EU copyright directives, and/or any other laws of the country in which the Customer purchases or Uses the Robot.
- 4.4 Proprietary Notices. The Customer agrees not to remove, obscure, or alter any proprietary rights notices (including patent, copyright, and trademark notices) that may be affixed to or contained within the Software or the Robot. Nothing in this Agreement gives the Customer any right to any of Brain’s trade names, trademarks, service marks, logos, domain names, or parts thereof, or other distinctive brand features.
5. Confidentiality and Data
- 5.1 Confidentiality. “Confidential Information” means information that one party (“Disclosing Party”) discloses to the other party (“Receiving Party”) under the Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. Confidential Information does not include information that is independently developed by the recipient, is shared with the recipient by a third party without confidentiality obligations, or is or becomes public through no fault of the recipient. The Receiving Party will only use the Disclosing Party’s Confidential Information to exercise its rights and fulfill its obligations under this Agreement, and will use reasonable care to protect against the disclosure of the Disclosing Party’s Confidential Information. Notwithstanding any other provision in this Agreement, the Receiving Party may disclose the Disclosing Party’s Confidential Information: (a) to its employees, affiliates, agents, subcontractors, and professional advisors, who have a need to know and who are bound by confidentiality obligations at least as protective as those in this Section 5.1; (b) with the Disclosing Party’s written consent; or (c) as strictly necessary to comply with any laws or regulations, including pursuant to any requests by a judicial or governmental order or investigative demand, subpoena, or similar process, provided the Receiving Party promptly notifies the Disclosing Party prior to such disclosure unless the Receiving Party is legally prohibited from doing so. The Receiving Party will comply with the Disclosing Party’s reasonable requests to oppose disclosure of its Confidential Information.
- 5.2 Operational Data. As between the Customer and Brain, and subject to the terms and conditions of this Agreement, the Customer owns and retains all right, title and interest in Operational Data. “Operational Data” means the data of the environment obtained by the sensors of a Robot during its operations and explicitly excludes all Personal Data. The Customer hereby grants to Brain a limited, perpetual, nonexclusive, transferable, irrevocable, worldwide license and right to store, use, sublicense, and copy Operational Data to: (a) fulfill Brain’s obligations to the Customer under this Agreement, and (b) develop and improve Software, Services, Robots, and other products and services. Except as provided herein, Brain shall not use Operational Data for any other purpose without the Customer’s prior written consent (email being sufficient). To the extent Operational Data is aggregated and not linked to the Customer, such data will not be considered Operational Data. The Customer acknowledges that it is neither practical nor useful for Brain to provide Operational Data to the Customer except as specified in the Service-Specific Terms for the particular Services to which the Customer has an active subscription.
- 5.3 No Personal Data. The Customer acknowledges that Brain does not knowingly collect any Personal Data through the Robot, Software, or Services; provided, certain Personal Data may be collected by Brain or a third-party in the event notice is provided to a Permittee and such Permittee opts-in. “Personal Data” means personal data that (a) has the meaning given to it in (i) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“EU GDPR”) or (ii) the EU GDPR as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018, if in force (“UK GDPR”), as applicable; and (b) would cause Brain to be subject to the EU GDPR or the UK GDPR (as applicable) as a data processor for the Customer.
- 5.4 Additional Information. The Customer consents to Brain’s then-current data privacy notice, described at www.braincorporation.com/data-privacy, detailing how Brain uses data collected under this Agreement. The Customer may be subject to, or have, additional country- or region-specific limitations, consents, responsibilities, or rights related to the collection, use, or transfer of information under this Agreement.
6. Terminating this Agreement
This Agreement will continue to apply until terminated by either the Customer or Brain as set out below:
- 6.1 Termination by Customer. In the event that Brain has breached any provision of this Agreement and failed to cure such breach within 30 days’ notice of such breach from the Customer, the Customer may terminate this Agreement by ceasing completely the use of the Software and the Services. The Customer may be required to separately terminate the Services under terms and conditions provided in the Customer’s respective Service Document executed with Brain or an Authorized Seller.
- 6.2 Termination by Brain. To the extent permitted under any applicable law, regulation, or directive, Brain may, at any time, immediately terminate this Agreement with the Customer if: (a) the Customer has breached any provision of this Agreement and failed to cure such breach within 30 days’ notice of such breach from Brain; or (b) Brain is required to do so by law. Notwithstanding the foregoing, in the event the Customer makes any use of the Software, Services, or Services not expressly permitted by this Agreement, the Customer’s license rights under this Agreement shall immediately and automatically be suspended, including the provision of Services. When this Agreement comes to an end, all legal rights, obligations, and liabilities that the Customer and Brain have benefited from, been subject to (or which have accrued over time while this Agreement has been in force) or which are expressed to continue indefinitely, shall not be affected and the provisions of Section 10.4 shall continue to apply to such rights, obligations, and liabilities indefinitely.
7. Warranties
Brain represents and warrants that the Software will: (a) materially conform to the Robot’s then-current user manuals; and (b) provide Services as described in the Service’s applicable Service-Specific Terms as reasonably verifiable by Brain for each Robot, subject to the Restrictions on Use, during the subscription term of such Services. Upon the Customer providing written notice of Brain’s breach of the preceding warranties and Brain’s failing to cure such breach within 30 days of receipt of such notice, the Customer’s sole remedy for breach of this Section 7 for any Robot shall be termination of the Services for that Robot and a pro-rated refund of the fees paid by the Customer for the remaining time of the Customer’s Services subscription for such Robot. Except as expressly provided in this Section 7, to the fullest extent permitted under any applicable law, regulation, or directive, Brain expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability and fitness for a particular purpose.
8. Limitation of Liability
The Customer expressly understands and agrees that Brain, its subsidiaries and affiliates, and its licensors shall not be liable to the Customer under any theory of liability for any indirect, incidental, special, consequential, or exemplary damages arising under this Agreement that may have been incurred by the Customer, whether or not Brain or its representatives have been advised of or should have been aware of the possibility of any such losses arising. In no event will the liability of Brain under this Agreement exceed the amount actually paid by the Customer (or with respect to claims for fees due, payable) for the Robotic Scrubber’s Services during the then-current applicable subscription period in the Service Document giving rise to the claims. Such exclusion of liability shall not apply to any injury of life or body, arising from any grossly negligent or intentional conduct of Brain, or to other mandatory statutory liability or responsibility pursuant to the applicable law, regulation, or directive in the jurisdiction in which the Customer purchased the Robot.
9. Changes to this Agreement
Brain reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions as required for safety, for compliance with laws or government regulations, and/or that do not materially impact the Customer’s use of the Robot (collectively referred to in this Agreement as “Additional Terms”) on the Customer’s use of the Software and Services. The Additional Terms will be effective immediately and be considered incorporated into this Agreement. The Customer’s continued use of the Software or Services following notice, at the mailing address or email address provided to Brain, of any Additional Terms will be deemed to constitute the Customer’s acceptance of all such Additional Terms.
10 .General Terms
- 10.1 Agreement Documents. Any terms (other than those explicitly recognized in this Agreement) with respect to the Software or Services in a Service Document, purchase order, vendor agreement, extended service agreement, or any other instrument are void unless agreed upon in writing by Brain, and the terms and conditions of this Agreement shall control in the event of a conflict with any such instrument to the extent not expressly overwritten. This Agreement and any other instrument that references this Agreement that is signed by the Customer and Brain (together the Agreement and other instrument, the “Agreement Documents”) constitutes the whole legal agreement between the Customer and Brain and governs the Customer’s use of the Software or Services (excluding any services which Brain may provide to the Customer under a separate written agreement), and completely replaces any prior agreements between the Customer and Brain in relation to the Software and Services. The Customer agrees that if Brain does not exercise or enforce any legal right or remedy which is contained in the Agreement Documents (or which Brain has the benefit of under any applicable law), this will not be taken to be a formal waiver of Brain’s rights and that those rights or remedies will still be available to Brain. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the Agreement Documents is invalid, then that provision will be removed from this Agreement without affecting the rest of the Agreement Documents. The remaining provisions of the Agreement Documents will continue to be valid and enforceable. This Agreement shall serve as the “Autonomous Navigation Software Customer License Agreement” or “EULA” as may be referenced by the Robot’s user Instructions and other documents by Brain or any Authorized Seller. The Customer may also be referred to as the “End User.”
- 10.2 Export Control. The Software is subject to United States Export Laws. The Customer agrees to comply with all applicable domestic and international export and re-export restrictions and regulations, including those of the jurisdiction where the Robot was delivered, and not to transfer, or authorize the transfer, of the Software or Services to a prohibited country or otherwise in violation of any such restrictions or regulations.
- 10.3 Assignment. The rights granted in the Agreement Documents may not be assigned or transferred by the Customer without the prior written approval of Brain. The Customer shall not be permitted to delegate the Customer’s responsibilities or obligations under the Agreement Documents to any third party without Brain’s prior written approval.
- 10.4 Arbitration. The Agreement Documents shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Claims shall be heard by a single arbitrator, unless the claim amount exceeds $500,000, in which case the dispute shall be heard by a panel of three arbitrators. The place of arbitration shall be San Diego, California. The arbitration shall be governed by the laws of the State of California. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. The standard provisions of the Commercial Rules shall apply. Arbitrators will have the authority to allocate the costs of the arbitration process among the parties but will only have the authority to allocate attorneys’ fees if a particular law permits them to do so. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness. In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above. Notwithstanding the foregoing, the Customer agrees that Brain shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
11. Contact Us
For any questions, comments, or concerns about this Agreement, or for any notices to Brain, please contact Brain by postal mail or email at:
Brain Corporation
Attn: EULA
10182 Telesis Court, Suite 100
San Diego, CA 92121
eula@braincorp.com
