This Agreement sets forth the terms and conditions between Customer (as defined in the paragraph below) and brainboost GmbH (”brainboost”, “we”, “our”, “us”) which govern Customer’s and its Affiliates’ license to access and use brainboost Services. brainboost and Customer may individually be referred to as a “party” and collectively “the parties”. The Agreement is effective as of the date that you sign up for any Service or submit a Service Order that references this Agreement (the “Effective Date”).
Your access to and use of the Services is conditioned upon your acceptance of and compliance with these terms. By accepting this Agreement, either by clicking a box indicating your acceptance, executing an Order Form or other document that references this Agreement, by using (or making any payment for) the Services, or by otherwise indicating your acceptance of this Agreement, you: (1) agree to this Agreement on behalf of the customer indicated on the Order (if applicable) or the organization, business, or other legal entity for which you act (”Customer”, “you”, “your”); and (2) represent and warrant that you have the authority to bind Customer to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services.
If you are accessing or using the Service on behalf of an organization, then your organization is legally and financially responsible for your access to and use of the Service as well as for the use of your brainboost account by others affiliated with the organization, including any employees, agents or contractors. For the avoidance of doubt, the organization, company, or other legal entity for which you act will be considered the “Customer” under this Agreement.
“Affiliate” means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.
“Account Information” means information that you and your Users provide to brainboost in connection with (1) the creation or administration of your BrainAssistant account; or (2) brainboost’s maintenance of your account or the Services. For example, Account Information includes names, usernames, passwords, phone numbers, email addresses, billing information, and usage information associated with your BrainAssistant account.
Confidential Information” means information that either party (“Discloser”) discloses to the other party (“Recipient”) under this Agreement, and that is conspicuously marked and visually stated as confidential or would normally be considered confidential information by a reasonable party under the circumstances. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third party without confidentiality obligations; or (3) becomes public through no fault of Recipient. brainboost’s Confidential Information includes non-public information regarding features, functionality, performance, and pricing of the Services, the Documentation, API(s), and other brainboost products or services.
“Customer Data” means all data stored by Customer or at Customer’s direction in the Services. Customer Data does not include Account Information. brainboost sometimes refers to “User Content” in its policies and Documentation. Such User Content shall be considered Customer Data. Also data about the User’s clients (trainees) shall be considered Customer Data. Customer will make sure to consider third party’s privacy rights (see here).
“Documentation” means brainboost-provided user documentation relating to the Services (e.g. user guides), as may be updated by brainboost from time to time. Documentation does not include content published in user or community forums hosted or moderated by brainboost.
“Force Majeure Event” means any circumstances beyond brainboost’s reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving brainboost’s employees), Internet service provider failure or delay, Non-brainboost Application failure, or acts undertaken by third parties, including without limitation, any denial of service attack or third party domain name system event.
“Marketplace” means brainboost’s marketplace provided in the BrainAssistant involving the diverse modules.
“Order Form” means any ordering documentation or online sign-up or subscription pages, regardless of form, agreed to between the parties which sets forth the Services licensed by the Customer and any relevant pricing. Multiple Order Forms may be entered into under this Agreement.
“Services” means brainboost’s software-as-a-service platform including any related APIs provided by brainboost, together with all related desktop applications. “Services” exclude Non-brainboost Applications.
“Subscription” means licenses to the Services and Documentation, each as applicable in accordance with your Subscription Plan.
“Subscription Fees” means all fees associated with your Subscription.
“Subscription Plan” means the applicable subscription level of packaged functionality and services as detailed in the applicable Documentation and upon request.
“Subscription Term” means the period during which you have agreed to subscribe to a Service.
“Usage Data” means information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including information concerning Customer’s and Users’ use of the various features and functionality of the Services and analytics and statistical data derived therefrom).
“User” means any individual who is authorized to access the Services by Customer. Each User must use a unique identity (avatar) to access and use the Services, and may access the Services only to the extent licensed by Customer.