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Digital Inspector as a Service Agreement

Terms of Service

TERMS OF SERVICE  [Need a PDF? Download a copy here]

1.1 Digital Inspector as a Service Solutions ("DIaaS")

  • BrainCreators DIaaS Solutions are an "as a service" offering that BrainCreators makes remotely available via a network, such as software as a service, platform as a service, or infrastructure as a service.
  • Each BrainCreators DIaaS Solution is described in a Transaction Documents (TDs) which detail the specifics of transactions, such as charges and a description of and information about the DIaaS Solutions. Examples of TDs include ordering documents, invoices, service descriptions, and statements of works. There may be more than one TD applicable to a  transaction..
  • BrainCreators DIaaS Solutions are designed to be available 24/7, subject to maintenance. BrainCreators will provide advance notice of scheduled maintenance.
  • Technical support and service level commitments, if any, are specified in an TD or Attachment. Documents identified as Attachments provide supplemental terms that apply across certain types of transactions such as a solution attachment.

1.2 Non-BrainCreators Services

  • BrainCreators may offer third party Cloud Services, or BrainCreators Services may enable access to third party Cloud Services (Non-BrainCreators Services).
  • A TD will identify any applicable third party terms that govern Client's use of Non-BrainCreators Services. Use of Non-BrainCreators Services constitutes Client's agreement with the third party terms.
  • BrainCreators is not a party to any third party terms and is not responsible for Non-BrainCreators Services.

1.3 Order Acceptance

  • Client accepts the applicable Attachment or TD for BrainCreators DIaaS Solution(s) by subscribing making a payment, or sending a purchase order (PO).
  • BrainCreators accepts a Client's order by confirming the order or enabling access to the DIaaS Solution(s) environment.

1.4 What BrainCreators Provides

  • BrainCreators provides the facilities, personnel, equipment, software, and other resources necessary for BrainCreators to provide the BrainCreators DIaaS Solution(s).
  • BrainCreators provides generally available user guides and documentation to support Client's use of the BrainCreators DIaaS Solution(s).

1.5 Enabling Software

  • Enabling Software is software that Client accesses through a browser or downloads to Client systems that facilitates the use of the DIaaS Solution(s) and will be identified in a TD.
  • Enabling Software is not part of the DIaaS Solution and Client may use Enabling Software only in connection with use of the DIaaS Solution in accordance with any licensing terms specified in a TD.
  • The licensing terms will specify applicable warranties, if any. Otherwise, Enabling Software is provided as is, without warranties of any kind.

1.6 What Client Provides

  • Client will provide hardware, software and connectivity to access and use the DIaaS Solution(s), including any required Client-specific URL addresses and associated certificates.
  • The provided hardware, software and connectivity to access and use the DIaas Solution(s), including any required Client-specific URL addresses and associated certificates needs to be validated by Braincreators.
  •  After validation Brainceators provides the Client an advice regarding the provided hardware, software and connectivity to access and use the DIaas Solution(s), including any required Client-specific URL addresses and associated certificates.
  • In case the Client decides not to follow Braincreators advice, Braincreators can never be held responsible for any damage or non conformities by the Client.
  • Braincreators reserves the right to postpone any deliveries if the quality of the provided hardware, software and connectivity to access and use the DIaas Solution(s), including any required Client-specific URL addresses and associated certificates is not validated or regarded as unsuitable, by Braincreators.

1.7 Right to Use and Client Responsibilities

  • Client's authorized users may access the DIaaS Solution(s) only to the extent of authorizations Client acquires.
  • Client is responsible for the use of the DIaaS Solution(s) by any user who accesses the DIaaS Solution(s) with Client's account credentials.

1.8 Acceptable Use Terms

  • The DIaaS Solution(s) may not be used for unlawful, harmful, obscene, offensive, or fraudulent Content or activity. Examples of prohibited activities are advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive, or deceptive messages, introducing viruses or harmful code, or violating third party rights.
  • Client may not use the DIaaS Solution(s) if failure or interruption of the DIaaS Solution(s) could lead to death, serious bodily injury, or property or environmental damage.
  • Client may not:
    • reverse engineer any portion of a the DIaaS Solution(s);
    • assign or resell direct access to a the DIaaS Solution(s) to a third party outside Client's Enterprise; or
    • combine the DIaaS Solution(s) with Client's value add to create a Client branded solution that Client markets to its end user customers unless otherwise agreed by BrainCreators in writing.
  • Braincreators reserves the right to immediately terminate all service provisions if any breach by the Client occurs as described in this article without  prior warning.
  • Braincreators will investigate any damage that might occur due to the breach caused by the Client. All costs that Braincreators need to make regarding this investigation are at the expense of the Client.
  • If any breach has been detected by Braincreators article 6 of this agreement will be applicable.

1.9 Preview Digital Inspector as a Service Solution(s)

  • The DIaaS Solution(s) or features of the DIaaS Solution(s) are considered "preview" when BrainCreators makes such services or features available at no charge, with limited or pre-release functionality, or for a limited time to try available  functionality. Examples of preview DIaaS Solution(s) include beta, trial, no-charge, or preview-designated DIaaS Solution(s).
  • Any preview DIaaS Solution(s) is excluded from available service level agreements and may not be supported.
  • BrainCreators may change or discontinue a preview of the DIaaS Solution(s) at any time and without  notice.
  • BrainCreators is not obligated to release a preview of the DIaaS Solution(s) or make an equivalent service generally available.

2. Content and Data Protection

2.1 Content Client Provides

  • Content consists of all data, software, and information that Client or its authorized users provides, authorizes access to, shares with BrainCreators, or inputs to BrainCreators DIaaS Solution(s).
  • Client grants the rights and permissions to BrainCreators, its affiliates, and contractors of either, to use, provide, store, and otherwise process Content solely for the purpose of providing the BrainCreators DIaaS Solution(s).
  • Use of the DIaaS Solution(s) will not affect Client's ownership or license rights of Content.

2.2 Use of Content

BrainCreators, its affiliates, and contractors of either, will access and use the Content solely for the purpose of providing and managing the BrainCreators DIaaS Solution(s).

  • BrainCreators will treat Content as confidential by only disclosing to BrainCreators employees and contractors to the extent necessary to provide the BrainCreators DIaaS Solution(s).
  • By the very nature of machine learning systems, some Content may become implicitly represented in the weights of algorithms and machine learning models. Explicit representations will remain confidential at all times.
  • BrainCreators cannot be held responsible for any loss of data, if anything should occur.

2.3 Client Responsibilities

  • Client is responsible for obtaining all necessary rights and permissions to permit processing of Content in the BrainCreators DIaaS Solution(s).
  • Client will make disclosures and obtain consent required by law before Client provides, authorizes access, or inputs individuals' information, including personal or other regulated data, for processing in the BrainCreators DIaaS Solution(s).
  • If any Content could be subject to governmental regulation or may require security measures beyond those specified by BrainCreators for the BrainCreators DIaaS Solution(s), Client will not provide, allow access to, or input the Content for processing in the BrainCreators DIaaS Solution(s) unless specifically permitted in the applicable TD or unless BrainCreators has first agreed in writing to implement additional security and other measures.

2.4 Data Protection

  • Specific security features and functions of the BrainCreators DIaaS Solution(s) will be described in the applicable Attachment or TD.
  • Client is responsible for selecting, ordering, enabling, and using available data protection features appropriate to support Client's use of the DIaaS Solution(s).
  • Client is responsible for assessing the suitability of the DIaaS Solution(s) for the Content and Client's intended use. Client acknowledges that the DIaaS Solution(s) used meet Client's requirements and processing instructions required to comply with applicable laws.

2.5 BrainCreators Data Processing Addendum

  • BrainCreators Data Processing Addendum (DPA) is found at https://www.braincreators.com/dpa.
  • Each BrainCreators DIaaS Solution(s) has a DPA  Exhibit that specifies how BrainCreators will process Client's data.
  • The DPA and applicable DPA Exhibit(s) apply to personal data contained in Content, if and to the extent: i) the European General Data Protection Regulation (EU/2016/679); or ii) other data protection laws identified at https://www.BrainCreators.com/dpa/dpl apply.
  • Upon request by either party, BrainCreators, Client, or affiliates of either, will enter into additional agreements as required by law in the prescribed form for the protection of regulated personal data included in Content. The parties agree (and will ensure that their respective affiliates agree) that such additional agreements will be subject to the terms of the Agreement.

2.6 Removal of Content

  • For BrainCreators DIaaS Solution(s) with self-managed features, Client can remove Content at any time. Otherwise, BrainCreators will return or remove Content from BrainCreators computing resources upon the expiration or cancellation of the BrainCreators DIaaS Solution(s), or earlier upon Client's request.
  • BrainCreators may charge for certain activities performed at Client's request (such as delivering Content in a specific format).
  • BrainCreators does not archive Content; however, some Content may remain in the BrainCreators DIaaS Solution backup files until expiration of such files as governed by BrainCreators backup retention practices.
  • Content that is implicitly represented through parameters and weights in machine learning algorithms and models that are part of the DIaaS platform and solutions, is non-removable due to the abstract nature of it’s representation.

3. Changes and Withdrawal of DIaaS Solutions

3.1 BrainCreators Right to Change DIaaS Solutions
  • At any time  and at BrainCreators discretion, BrainCreators may change:

    1.     the BrainCreators DIaaS Solution, including the corresponding published descriptions;  and
    2.     the DSP and other published data security and privacy documentation for the BrainCreators DIaaS Solution.

  • The intent of any change to the above will be to:

    1.     make available additional features and functionality;
    2.     improve and clarify existing commitments; or
    3. maintain alignment to current adopted operational and security standards or applicable laws.

  • The intent is not to degrade the security or data protection features or functionality of the BrainCreators DIaaS Solution.
  • Changes to the published descriptions, DSP, or published other documents as specified above, will be effective when published or on the specified effective date.
  • Any changes that do not meet conditions specified above will only take effect, and Client accepts, upon:

    1. a new order;
    2.     the term renewal date  for the BrainCreators DIaaS Solution that automatically renew; or
    3.     notification from BrainCreators of the change effective date for ongoing services that do not have a specified term.

3.2 Withdrawal of a DIaaS Solution

  • BrainCreators may withdraw a BrainCreators DIaaS Solution(s) on 12 months' notice.
  • BrainCreators will continue to provide withdrawn BrainCreators DIaaS Solution(s) for the remainder of Client's unexpired term or work with Client to migrate to another generally available Digital Inspector as a Service offering.
  • Non-BrainCreators Services may be discontinued at any time if the third party discontinues or BrainCreators no longer makes available such services.

4. Warranties

4.1 BrainCreators Warrants

  • BrainCreators warrants that it provides BrainCreators DIaaS Solution(s) or other BrainCreators Services using commercially reasonable care and skill and as described in the applicable TD.
  • These warranties end when the  BrainCreators DIaaS Solution(s) or other BrainCreators Services end.
  • These warranties are the exclusive warranties from BrainCreators and replace all other warranties, including the implied warranties or conditions of satisfactory quality, merchantability, non- infringement, and fitness for a particular purpose.

4.2 Warranty Limitations 

  • BrainCreators does not warrant the uninterrupted or error-free operation of the BrainCreators DIaaS Solution(s). BrainCreators does not warrant it will correct all defects.
  • While BrainCreators endeavors to provide security measures to keep all data secure, BrainCreators does not warrant BrainCreators can prevent all third party disruptions or unauthorized third party access.
  • BrainCreators warranties will not apply if there has been misuse, modification, damage not caused by BrainCreators, or failure to comply with written instructions provided by BrainCreators.
  • BrainCreators makes preview DIaaS Solution(s) or Non-BrainCreators Services under the Agreement as-is, without warranties of any kind. Third parties may provide their own warranties to Client for Non-BrainCreators Services.

5. Charges, Taxes, and Payments

5.1 Charges

  • Client agrees to pay all applicable charges specified in a TD and charges for use in excess of authorizations.
  • Charges are exclusive of any customs or other duty, tax, and similar levies imposed by any authority resulting from Client's acquisitions under the Agreement and will be invoiced in addition to such charges.
  • Amounts are due upon receipt of the invoice and payable within 30 days of the invoice date to an account specified by BrainCreators and late payment fees may apply.
  • Prepaid services must be used within the applicable period.
  • BrainCreators does not give credits or refunds for any prepaid, one-time charges, or other charges already due or paid, except as provided in the Agreement.
  • If BrainCreators commits to pricing as specified in a TD, BrainCreators will not change such pricing during the specified term. If there is not a specified commitment, then BrainCreators may change pricing on thirty days' notice.

5.2 Withholding Taxes

  • Client agrees to:

    1. pay withholding tax directly to the appropriate government entity where required by law;
    2.     furnish a tax certificate evidencing such payment to BrainCreators;
    3.     pay BrainCreators only the net proceeds after tax; and
    4.     fully cooperate with BrainCreators in seeking a waiver or reduction of such taxes and promptly complete and file all relevant documents.

5.3 Invoicing

  • BrainCreators will invoice:

    1.     recurring charges at the beginning of the selected billing frequency term;
    2.     overage and usage charges in arrears; and
    3.     one-time charges upon BrainCreators's acceptance of an order.

6. Liability and Indemnity

6.1 Liability for Damages

  • BrainCreators's entire liability for all claims related to the Agreement will not exceed the amount of any actual direct damages incurred by Client up to the amounts paid (if recurring charges, up to 12 months' charges apply) for the service that is the subject of the claim, regardless of the basis of the claim.
  • BrainCreators will not be liable for special, incidental, exemplary, indirect, or economic consequential damages, or lost profits, business, value, revenue, goodwill, or anticipated savings.
  • These limitations apply collectively to BrainCreators, its affiliates, contractors, and suppliers.

6.2 What Damages are Not Limited

  • The following amounts are not subject to the above cap:

    1. third party payments referred to in the Infringement Claims subsection below; and
    2.     damages that cannot be limited under applicable law.

6.3 Infringement Claims

  • If a third party asserts a claim against Client that the BrainCreators DIaaS Solution(s) infringes a patent or copyright, BrainCreators will defend Client against that claim and pay amounts finally awarded by a court against Client or included in a settlement approved by BrainCreators.
  • To obtain BrainCreators's defense against and payment of infringement claims, Client must promptly:

    1. notify BrainCreators in writing of the claim;
    2.     supply information requested by BrainCreators; and
    3.     allow BrainCreators to control, and reasonably cooperate in, the defense and settlement, including mitigation efforts.

  • BrainCreators's defense and payment obligations for infringement claims extend to claims based on Open Source Code that BrainCreators selects and embeds in the BrainCreators DIaaS Solution(s). Open Source Code is software code licensed from a third party meeting the Open Source Definition defined at https://opensource.org/osd.

6.4 Claims Not Covered

  • BrainCreators has no responsibility for claims based  on:

    1. non-BrainCreators products and services, including Non-BrainCreators Services;
    2.     items not provided by BrainCreators; or
    3.     any violation of law or third party rights caused by Content, materials, designs, or specifications.

7. Term and Termination

7.1 Term of a Digital Inspector as a Service Solution

  • The term begins on the date BrainCreators notifies Client that Client can access the DIaaS Solution(s).
  • The ordering TD will specify whether the DIaaS Solution(s) renew automatically, proceed on a continuous use basis, or terminate at the end of the term.
  • For automatic renewal, unless Client provides written notice of non-renewal to BrainCreators or the BrainCreators Business Partner involved in the DIaaS Solution(s) at least 30 days prior to the term expiration date, the DIaaS Solution(s) will automatically renew for the specified term.
  • For continuous use, the DIaaS Solution(s) will continue to be available on a month to month basis until the Client provides 30 days written termination notice to BrainCreators or the BrainCreators Business Partner involved in the DIaaS Solution(s). The DIaaS Solution(s) will remain available until the end of the calendar month after the 30-day period.

7.2 Suspension of a BrainCreators DIaaS Solution

  • BrainCreators may suspend or limit, to the extent necessary, Client's use of a BrainCreators DIaaS Solution(s) if BrainCreators reasonably determines there is a:

    1.      material breach of Client's obligations;
    2.      security breach;
    3.      violation of law; or
    4.      breach of the Acceptable Use Terms.

  • BrainCreators will provide notice prior to a suspension as commercially reasonable.
  • If the cause of a suspension can reasonably be remedied, BrainCreators will provide notice of the actions Client must take to reinstate the BrainCreators DIaaS Solution(s). If Client fails to take such actions within a reasonable time, BrainCreators may terminate the BrainCreators DIaaS Solution(s).

7.3 Termination of Digital Inspector as a Service Solution

  • Client may terminate the BrainCreators DIaaS Solution(s) on 30  days' notice:

    1.     at the written recommendation of a government or regulatory agency following a change in either applicable  law or the BrainCreators DIaaS Solution(s);
    2.     if a change to the BrainCreators DIaaS Solution(s) causes Client to be non-compliant with applicable laws; or
    3. if BrainCreators notifies Client of a change to the BrainCreators DIaaS Solution(s) that has a material adverse effect on Client's use of the BrainCreators DIaaS Solution(s), provided that BrainCreators will have 90 days to work with Client to minimize such effect.

  • In the event of any such Client termination above or a similar termination of a Non-BrainCreators Service, BrainCreators shall refund a portion of any prepaid amounts for the applicable Cloud Service for the period after the date of termination.
  • Client may terminate the BrainCreators DIaaS Solution(s) for material breach of BrainCreators’ obligations by giving notice and reasonable time to comply.
  • If the DIaaS Solution(s) are terminated for any other reason, Client will pay BrainCreators, on the date of termination, the total amounts due per the Agreement.
  • Upon termination, BrainCreators may assist Client in transitioning Content to an alternative technology for an additional charge and under separately agreed terms.

7.4 Termination of this DISA

  • Either party may terminate  this DISA:

    1.     without cause on at least 30 days' notice to the other after expiration or termination of its obligations under the Agreement; or
    2.     immediately for cause if the other is in material breach of the Agreement, provided the one who is not complying is given notice and reasonable time to comply.

  • Any terms that by their nature extend beyond the Agreement termination remain in effect until fulfilled and apply to successors and assignees.
  • Termination of this DISA does not terminate TDs, and provisions of this DISA as they relate to such TDs remain in effect until fulfilled or otherwise terminated in accordance with their terms.
  • Failure to pay is a material breach.

7.5 Waiver of Rights

  • The Parties waive their rights under Title 7.1 ('Koop') and clause 7:401 and 402 of the Dutch Civil Code, and their rights to invoke a full or partial dissolution ('gehele of partiele ontbinding') of this Agreement under section 6:265 of the Dutch Civil Code.

8. Governing Laws and Geographic Scope

8.1 Compliance with Laws

  • Each party is responsible for complying with:

    1.     laws and regulations applicable to its business and Content; and
    2.     import, export and economic sanction laws and regulations, including defense trade control regime of any jurisdiction, including the International Traffic in Arms Regulations and those of the United States that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users.

8.2 Applicable Laws

  • Both parties consent to the application of the laws of The Netherlands to govern, interpret and enforce all of the client’s and BrainCreators rights, duties and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles.
  • The rights and obligations of each party are  valid only in the  country of Client's business address.
  • If Client or any user exports or imports Content or uses any portion of the DIaaS Solution(s) outside the country of Client's business address, BrainCreators will not serve as the exporter or importer, except as required by data protection laws.
  • If any provision of the Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect.
  • Nothing in the Agreement affects statutory rights of consumers that cannot be waived or limited by contract.
  • The United Nations Convention on Contracts for the International Sale of Goods does not apply to transactions under the Agreement.

9. General

9.1 Intellectual property

  • BrainCreators continuously updates and modifies the Digital Inspector as a Service offering, including but not limited to the machine learning algorithms and enriched data (excluding client labeled data).  All of these updates and modifications are the property of BrainCreators and BrainCreators may make them available to all clients.
  • By the very nature of machine learning systems, derivatives of some content may become implicitly represented in the weights of algorithms and machine learning models. Explicit representations will remain confidential at all times and reconstruction or simulation of client proprietary data will not be possible from remaining derivatives.
  • The Digital Inspector as a Service Solution(s) is fueled by the information that is uploaded. If the Client has supplied that information, BrainCreators does not share that information with any other client. It stays contained within that DIaaS instance.
  • If the trained model is deleted, what remains is the improved Digital Inspector as a Service Solution -- the updated machine learning algorithms, deep learning algorithms, but not client specific decision modules.  BrainCreators owns those modifications and is free to license the modified Digital Inspector as a Service Solution(s) to other BrainCreators clients.
  • For the Digital Inspector software components that are generic intelligence or general industry intelligence is the property of BrainCreators.  Intelligence that is unique (not just specific) to the client is the property of the client (e.g. domain knowledge directly related to a unique client product or service such as an inspection report). 
  • For the Digital Inspector output, such as reports (excluding UI viewers) are the property of the client unless the client provides those to BrainCreators.

9.2 BrainCreators Role

  • BrainCreators is an independent contractor, not Client's agent, joint venturer, partner, or fiduciary.
  • BrainCreators does not undertake to perform any of Client's regulatory obligations or assume any responsibility for Client's business or operations, and Client is responsible for its use of DIaaS Solution(s).
  • BrainCreators is acting as an information technology provider only.
  • BrainCreators direction, suggested usage, or guidance or use of the DIaaS Solution(s) do not constitute medical, clinical, legal, accounting, or other licensed professional advice. Client and its authorized users are responsible for the use of the DIaaS Solution(s) within any professional practice and should obtain their own expert advice.
  • Each party is responsible for determining the assignment of its and its affiliates personnel, and their respective contractors, and for their direction, control, and compensation.

9.3 DISA Changes

  • BrainCreators may change this DISA by providing Client at least three months' notice.
  • DISA changes are not retroactive. They will only apply as of the effective date to:

    1.     new orders;
    2.     continuous DIaaS Solution(s) that do not expire; and
    3.     renewals.

  • For transactions with a defined renewable contract period stated in a TD, Client may request that BrainCreators defer the change effective date until the end of the current contract period.
  • Client accepts changes by placing new orders, continuing use after the change effective date, or allowing transactions to renew after receipt of the change notice.
  • Except as provided in this section and the Changes and Withdrawal of DIaaS Solution(s) section above, all other changes to the Agreement must be in writing accepted by both parties.

9.4 Business Conduct

  • BrainCreators maintains a robust set of business conduct and related guidelines covering conflicts of interest, market abuse, anti-bribery and corruption, and fraud.
  • BrainCreators and its personnel comply with such policies and require contractors to have similar policies.

9.5 Business Contact and Account Usage Information

  • BrainCreators, its affiliates, and contractors of either require use of business contact information and certain account usage information. This information is not Content.
  • Business contact information is used to communicate and manage business dealings with the Client. Examples of business contact information include name, business telephone, address, email, and user ID.
  • Account usage information is required to enable, provide, manage, support, administer, and improve DIaaS Solution(s). Examples of account usage information include digital information gathered using tracking technologies, such as cookies and web beacons during use of the BrainCreators DIaaS Solution(s).
  • When Client provides information to BrainCreators and notice to, or consent by, the individuals is required for such processing, Client will notify individuals and obtain consent. 

9.6 BrainCreators Business Partners

  • BrainCreators Business Partners who use or make available DIaaS Solution(s) are independent from BrainCreators and unilaterally determine their prices and terms. BrainCreators is not responsible for their actions, omissions, statements, or offerings.
  • If BrainCreators notifies Client their current BrainCreators Business Partner will no longer resell DIaaS Solution(s), Client may select to acquire auto renewing or continuous use DIaaS Solution(s) directly from BrainCreators or from another authorized BrainCreators Business Partner.

9.7 Assignment

  • Neither party may assign the Agreement, in whole or in part, without the prior written consent of the other.
  • BrainCreators may assign rights to receive payments. BrainCreators will remain responsible to perform its obligations.
  • Assignments by BrainCreators in conjunction with the sale of the portion of BrainCreators's business that includes the DIaaS Solution(s) is not restricted.

9.8 Enterprise Companies

  • This DISA applies to BrainCreators and Client (accepting this DISA) and their respective Enterprise companies that provide or acquire DIaaS Solution(s) under this DISA.
  • The parties shall coordinate the activities of their own Enterprise companies under the DISA. Enterprise companies include:

    1. companies within the same country that Client or BrainCreators control (by owning greater than 50% of the voting shares); and
    2.     any other entity that controls, is controlled by, or is under common control with Client or BrainCreators and has signed a participation agreement.

9.9 Notices and Administration

  • All notices under the Agreement must be in writing and sent to the business address specified for the Agreement, unless a party designates in writing a different address.
  • The parties consent to the use of electronic means and facsimile transmissions for communications as a signed writing.
  • Any reproduction of the Agreement made by reliable means is considered an original.
  • The Agreement supersedes any course of dealing, discussions, or representations between the parties.
  • Where approval, acceptance, consent, access, cooperation, or similar action by either party is required, such action will not be unreasonably delayed or withheld.

9.10 Cause of Action

  • No right or cause of action for any third party is created by the Agreement or any transaction under it.
  • Neither party will bring a legal action arising out of or related to the Agreement more than two years after the cause of action arose.
  • Neither party is responsible for failure to fulfil its non-monetary obligations due to causes beyond its control.
  • Each party will allow the other reasonable opportunity to comply before it claims the other has not met its obligations.

9.11 Global Resources

  • BrainCreators may use personnel and resources in locations worldwide, including contractors, to support the delivery of BrainCreators DIaaS Solution(s).
  • Client's use of the DIaaS Solution(s) may result in the transfer of Content, including personal data, across country borders.
  • A list of countries where Content may be transferred and processed for a BrainCreators Cloud Service is included in the applicable TD.
  • BrainCreators is responsible for the obligations under the Agreement even if BrainCreators uses a contractor and will have appropriate agreements in place to enable BrainCreators to meet its obligations for the BrainCreators DIaaS Solution(s).

9.12 Other Services

  • BrainCreators may offer additional customization, configuration, or other services to support DIaaS Solution(s), as detailed in a TD.