THESE TERMS OF SERVICE (“AGREEMENT”) DESCRIBE THE TERMS AND CONDITIONS ON WHICH BRANDY.IM (“BRANDY”) PROVIDES ITS CUSTOMERS (THE “CUSTOMER” or “YOU”) ACCESS TO BRANDY’ PROPRIETARY AI ENABLED EMAIL RESPONSE SYSTEMS AND RELATED INTERFACES (THE “BRANDY SERVICE” OR “SERVICE”).
BY INDICATING ACCEPTANCE OF THIS AGREEMENT OR BY OTHERWISE USING THE SERVICE, YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT WITH BRANDY. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT COMPLETE THE ORDER PROCESS AND DO NOT USE THE SERVICE.
1. Provision of the Brandy Service
1.1 Provision Generally
During the Term as defined in (Section 4.1) Brandy will provide Customer with access to Brandy Service in accordance with the this Agreement. To access and use the Brandy Service, Customer is responsible at its own expense for obtaining its own Internet access, and any applicable hardware and software required by it to connect to the Brandy Service. Any personal information you provide to us during the registration process is governed by our Privacy Policy, available at https://Brandy.com/privacy which we recommend you read.
1.2 Grant of Subscription Rights
Subject to the terms and conditions of this Agreement, Brandy hereby grants to Customer a limited, non-exclusive, non-transferable right to access and use the Brandy Service (including the Brandy Technology related thereto), solely for Customer’s business purposes during the Term.
The “Brandy Technology” means all of Brandy’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available or used in providing the Brandy Service.
All rights not expressly granted to Customer are reserved by Brandy and its licensors. There are no implied rights.
1.3 Eligibility Requirements
By entering into this Agreement, Customer represents and warrants that Customer meets the following minimum requirements (“Eligibility Requirements”): (a) Customer is at least 18 years old and has the legal capacity to be bound by this Agreement; (b) Customer has the necessary rights and authority to enter into and perform the obligations required of Customer under this Agreement including entering into this Agreement on behalf of and binding a third-party, if so applicable; (c) All information which Customer provides, including but not limited to information provided during registration, information about Customer and any third -party business or customers, and all relevant payment information, is within Customer’s right to use and provide us, and is and will remain accurate, complete and current; (d) Customer is in compliance with all applicable laws, including but not limited to all applicable laws and regulations pertaining to data privacy; (e) To the best of Customer’s knowledge, none of the Customer Data (as defined herein) will contain any unlawful, defamatory, offensive, libelous, harassing, abusive, fraudulent, pornographic or obscene content or material; and (f) Customer will provide Brandy with any information, records, or materials that we request to verify Customer’s compliance with the eligibility requirements set forth in this Agreement.
1.4 Restrictions
Customer shall not (and shall not authorize any third party to): (a) use the Brandy Service to develop or market any product, software or service that is functionally similar to or derivative of the Brandy Service, or for any other purpose not expressly permitted herein; (b) access or use the Brandy Service except as envisioned by the Brandy Service in its normal operation or as specified in any documentation or instructions provided by Brandy with regard to the use of the Service (the “Documentation”); (c) sell, distribute, rent, lease, service bureau, post, link, disclose or provide access to the Brandy Service, directly or indirectly, to any third party; or (d) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code) associated with the Brandy Service. Customer shall keep all passwords and API keys provided to it safe and secure, and shall be responsible for all use of the Brandy Service using passwords or API keys issued to Customer. Customer shall notify Brandy immediately of any actual or reasonably suspected unauthorized use of its passwords or API keys for the Brandy Service. Without limiting any of its other rights or remedies, Brandy reserves the right to suspend access to the Brandy Service if Brandy reasonably believes that Customer has materially violated the restrictions and obligations in this Agreement (in which case, it shall endeavor to provide Customer prompt written notice of such suspension and an opportunity to cure, as practical and reasonable under the circumstances).
1.5 Customer Cooperation
Customer shall reasonably cooperate with Brandy as reasonably necessary for Brandy to provide the Brandy Service in accordance with this Agreement, which may include providing Brandy reasonably requested information.
1.6 Supplemental Terms
Certain Services may require Customer’s or its representatives’ agreement to Supplemental Terms before Customer can use those additional services, and/or Customer and Brandy may enter into Supplemental Terms for specific Services on a case by case basis. In either case, those Supplemental Terms will be incorporated into this Agreement and takes precedence if there is conflict with respect to the applicable Services. Supplemental Terms will only be binding if expressly agreed to by Customer.
2. Ownership
Customer acknowledges and agrees that as between Brandy and Customer, all right, title and interest in and to the Brandy Service (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information other than Customer Data) and other content on or made available through the Brandy Service, other than Customer Data), the Brandy Technology and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by Brandy or its licensors, and this Agreement in no way conveys any right, title or interest in the Brandy Service or the Brandy Technology other than a limited right to access and use the Brandy Service in accordance with this Agreement.
Brandy acknowledges and agrees that as between Customer and Brandy, all right, title and interest in and to the Customer Data are and shall remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title or interest in the Customer Data other than a limited right to use the Customer Data in accordance with the terms and conditions herein.
No right or license is granted hereunder to either Party under any trademarks, service marks, trade names or logos. Customer shall not remove any Brandy trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Brandy Service.
3. Fees; Payments; Taxes
3.1 Fees
In consideration of the provision of the Brandy Services, Customer shall pay Brandy the monthly and other applicable fees pursuant to the fee schedule and Brandy subscription plan chosen by Customer on https://Brandy.im and make such payment in accordance with the instructions and schedule associated with that subscription plan, unless otherwise agreed.
3.2 Increases
Brandy reserves the right to increase its fees following the Initial Term or Renewal term (as defined below) for any Renewal Term on 60 days’ prior notice. If Customer objects to the fee increase, Customer may terminate the Brandy Service by written notice following the Initial Term or applicable Renewal Term. If Customer does not exercise its right of termination during such period, Customer will be deemed to have accepted the increased fees.
3.3 Taxes
All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Brandy Service, or Customer’s access to the Brandy Service. Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Brandy’s income), which may be invoiced by Brandy from time-to-time.
3.4 Late Payments and Disputed Fees
Customer shall pay interest on all late payments for amounts not subject to a timely good faith dispute at the lesser of (a) 1% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Brandy for all reasonable costs and expenses, including reasonable attorneys’ fees, incurred in collecting any unpaid undisputed amounts owed by Customer hereunder. If Customer reasonably disputes any amount invoiced, it shall promptly inform Brandy of such dispute and may withhold payment for the amount subject to such dispute.
4. Term; Termination
4.1 Term, Automatic Renewal
The term of this Agreement shall commence upon Customer’s selection of a subscription plan to the Brandy Service, and shall continue for the period of the initial subscription period selected by the Customer (the “Initial Term”), unless earlier terminated in accordance with this Agreement. In the event that the Agreement is not terminated, it shall continue to automatically renew for the length of the Initial Term (each a “Renewal Term”). The Initial Term and any Renewal Term is referred to herein as a “Subscription Term” or the “Term.”
4.2 Termination
Either Party may terminate this Agreement by written notice thereof to the other Party, if the other Party materially breaches this Agreement and does not cure such breach within 30 days after written notice thereof.
In addition, either Party may terminate for convenience upon 30 days’ written notice. However, if Customer terminates for its convenience and its subscription plan’s pricing includes a discounted fee for a minimum Term, then Customer may not terminate for its convenience unless it pays Brandy the difference between the discounted and standard fee for the periods in which it had access to or use of the Services.
4. Effects of Termination; Survival
Upon any termination of this Agreement: (a) all rights granted to Customer hereunder shall terminate and Brandy shall no longer provide access to the Brandy Service to Customer, (b) Customer shall cease using the Brandy Service, and (c) Brandy shall make available or destroy (at Customer’s election) all Customer Data in Brandy’ possession or control. Any obligations that have accrued prior to termination shall survive termination of this Agreement. In addition, the following Sections, as well as any other provisions herein which by their nature should survive, shall survive termination of this Agreement: Sections 2 through 10.
5. Customer Data
5.1 Data Generally
All data and information that the Customer inputs into the Brandy Service, is provided by third party integrations through Customer’s use of the Brandy Service, or is collected, generated, or obtained by Brandy or on its behalf in connection with the Customer’s use of the Brandy Service (including from end users) (each of the above, the “Customer Data”) is stored in a private and secure fashion, and will not be used by Brandy except as provided herein. Customer hereby grants to Brandy a limited, non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, and display the Customer Data during the Term in connection with providing the Brandy Service to Customer, and improving, developing and marketing the Brandy Service or new offerings and to train and improve artificial intelligence algorithms and models (provided that Brandy may only use anonymized and aggregated Customer Data to improve, develop and market the Brandy Services or develop new offerings). Brandy may analyze Customer Data, and data of other customers, to create aggregated and anonymized statistics or data that do not identify Customer or any individual, household, user, browser, or device and Brandy may during and after the Term use and disclose such statistics or data in its discretion. Except as specified otherwise in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. The content of Customer Data shall be Customer’s sole responsibility. Brandy shall operate the Brandy Service in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections.
Brandy shall implement and maintain reasonable and appropriate technical and organizational measures to ensure the protection, confidentiality, and integrity of Customer Data and otherwise comply with its data protection policies and/or addendums. In the event of any actual or reasonably suspected accidental, unauthorized, or unlawful use, destruction, loss, alteration, disclosure of, or access to Customer Data (“Security Incident”), Brandy shall: (a) provide prompt notice to Customer (no more than seventy two (72) hours) upon Brandy’ discovery of the Security Incident; (b) use reasonable efforts and take all reasonable actions to prevent, contain, and mitigate the impact of the Security Incident; (c) collect, preserve, and document evidence as reasonably practicable concerning the discovery, cause, vulnerability, remedial actions and impact related to such Security Incident; and (d) reasonably cooperate with Customer related inquiries.
5.2 Additional Customer Responsibilities
Customer is solely responsible for all Customer Data. Brandy does not guarantee the accuracy, integrity or quality of Customer Data. Customer shall not: (a) upload or otherwise make available to Brandy any Customer Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to Brandy any Customer Data that Customer does not have a right to transmit due to any law, rule, regulation or other obligation; (c) use, upload or otherwise transmit any Customer Data that infringes any intellectual property or other proprietary rights of any third party; (d) upload or otherwise make available to Brandy any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Brandy Service or servers or networks connected to the Brandy Service; (f) upload or otherwise make available to Brandy any Customer Data that constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule or standards issued thereunder, or constitutes similarly protected information under any applicable state, rule or regulation (g) violate any applicable law, rule or regulation, including those regarding the export of technical data, or (h) use the Brandy Service in a manner not prescribed in the Documentation.
6. Representations and Warranties; Disclaimer
6.1 General Representations and Warranties
Each Party hereby represents and warrants to the other Party that: (a) if such Party is a corporation, company or other entity (as applicable), such entity is duly organized, validly existing and in good standing in its jurisdiction of organization; (b) such Party’s execution, delivery and performance of this Agreement have been duly and validly authorized by all necessary organizational action on its part or, if such Party is an individual, such Party has legal capacity to enter into this Agreement; (c) the provisions set forth in this Agreement constitute legal, valid, and binding obligations of such Party enforceable against such Party in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting creditors’ rights generally; (d) its execution, delivery and performance of this Agreement does not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under, any agreement or other obligation to which such Party is subject; and (e) it has all rights and permissions necessary to fully perform its obligations hereunder.
6.2 Brandy Warranty
Brandy further represents and warrants that (a) it will provide the Brandy Service in a competent and workmanlike manner consistent with industry standards; and (b) it owns or otherwise has sufficient rights (including without limitation all intellectual property rights thereto) to grant the licenses to Customer under this Agreement. Brandy does not warrant that it will be able to correct all reported defects or that use of the Brandy Service will be uninterrupted or error free. Brandy makes no warranty regarding features or services provided by any third parties. Brandy retains the right to modify its Services and the Brandy Technology. In the event of a Brandy modification that materially reduces the Services, Customer may terminate on 30 days’ notice and receive a refund for pre-paid fees for Services not provided after that termination. Customer’s sole remedy for Brandy’s breach of the warranty in this paragraph shall be that Brandy shall remedy the applicable error, or if Brandy is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid for the Brandy Service for the Subscription Term during which the breach of warranty occurred.
6.3 Disclaimer
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICE (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, (B) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, (C) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR (D) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE.
6.4 Additional Disclaimer
CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS HOSTED BY A THIRD PARTY HOSTING PROVIDER (THE “HOSTING CONTRACTOR”) AND USES THIRD PARTY SERVER HARDWARE, DISK STORAGE, FIREWALL PROTECTION, SERVER OPERATING SYSTEMS, MANAGEMENT PROGRAMS, WEB SERVER PROGRAMS FOR DELIVERY OF THE SERVICES (THE “HOSTING CONTRACTOR SERVICES”). ADDITIONALLY, BRANDY USES THIRD PARTIES TO HELP RECEIVE PAYMENTS (“PAYMENT PROCESSOR”). BRANDY MAY CHANGE ITS HOSTING CONTRACTOR AND PAYMENT PROCESSOR AT ANY TIME. YOUR USE OF THE SERVICE IS SUBJECT TO ANY RESTRICTIONS IMPOSED BY THE HOSTING CONTRACTOR AND THE PAYMENT PROCESSOR, AS APPLICABLE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BRANDY SHALL NOT BE LIABLE FOR ANY PROBLEMS, FAILURES, DEFECTS OR ERRORS WITH THE SERVICE TO THE EXTENT CAUSED BY THE HOSTING CONTRACTOR OR PAYMENT PROCESSOR. CUSTOMER ACKNOWLEDGES THAT THE FEES PAYABLE FOR THE SERVICE REFLECT THE FACT THAT BRANDY IS NOT RESPONSIBLE FOR THE ACTS AND OMISSIONS OF THE HOSTING CONTRACTOR OR PAYMENT PROCESSOR.
7. Limitations of Liability
7.1 Damages Cap
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, EACH PARTY’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAYABLE BY CUSTOMER TO BRANDY UNDER THIS AGREEMENT OVER THE TWELVE MONTHS PRIOR TO WHEN THE LAST LIABILITY AROSE.
7.2 Disclaimer of Indirect Damages
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA, PROFITS OR REVENUE) ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
7.3 Exceptions
THE LIMITATIONS IN SECTIONS 7.1 AND 7.2 ABOVE SHALL NOT APPLY TO LIABILITY ARISING FROM (A) A PARTY’S WILFUL MISCONDUCT; (B) CUSTOMER’S OBLIGATION TO PAY ALL AMOUNTS DUE HEREUNDER; (C) A BREACH OF CONFIDENTIALITY OBLIGATIONS OR INFRINGEMENT OR MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (D) INDEMNIFICATION OBLIGATIONS. WITH RESPECT TO LIABILITY ARISING FROM AN UNAUTHORIZED USE OR DISCLOSURE OF CUSTOMER DATA IN BREACH OF THIS AGREEMENT, EACH PARTY’S LIABILTY WILL BE TWICE THE AMOUNT SET OUT IN SECTION 7.1 OF THIS AGREEMENT NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 7.1.
7.4 Basis of the Bargain
THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT BRANDY HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
8. Indemnification
8.1 Brandy Indemnification
Brandy shall defend, indemnify and hold harmless Customer and its directors, officers, and employees (“Customer Indemnified Parties”) from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent it is proven that the Brandy Service infringes, misappropriates or otherwise violates (collectively, “Infringes”) any third party intellectual property or proprietary right when used in accordance with this Agreement.
8.2 Customer Indemnification
Customer shall defend, indemnify and hold harmless Brandy and its directors, officers, and employees (“Brandy Indemnified Parties”) from and against any Claims relating to (a) an allegation that the Customer Data infringes or misappropriates any third party intellectual property, proprietary or privacy right; or (b) Customer’s violation of the restrictions in Section 1.4 above.
8.3 Indemnification Process
As conditions of the indemnification obligations in Sections 8.1-8.2 above: (a) the applicable Customer Indemnified Party or Brandy Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby), (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim, and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other Party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party (not unreasonably withheld).
8.4 Exclusions
Brandy’s obligations in Section 8.1above shall not apply to any Claim to the extent arising from or relating to (a) misuse of the Brandy Service not strictly in accordance with the Documentation, Brandy’s instructions, and this Agreement; (b) any modification, alteration or conversion of the Brandy Service not created or approved in writing by Brandy; (c) any combination of the Brandy Service with any computer, hardware, software or service not provided by Brandy; (d) Brandy’s compliance with specifications or other requirements of Customer; or (e) any Customer Data used by Brandy in accordance with this Agreement. If the Brandy Service is or may be subject to a Claim of Infringement described in Section 8.1 above, Brandy may, at its cost and sole discretion: (i) obtain the right for Customer to continue using the Brandy Service as contemplated herein; (ii) replace or modify the Brandy Service so that it becomes non-Infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Customer any pre-paid fees for the Brandy Service associated with the then-current Subscription Term. Brandy’ obligations in this Section 8 shall be Brandy’s sole obligations, and Customer’s sole remedies, in the event of any Infringement of intellectual property or proprietary rights by or related to the Brandy Service.
9. Confidentiality
9.1 Definition
“Confidential Information” means information that is disclosed by or on behalf of either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder during the Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, including without limitation information (tangible or intangible) regarding a Party’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. “Confidential Information” shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; (ii) the Brandy Service and Brandy Technology shall be deemed Confidential Information of Brandy, regardless of whether or not they are labeled or identified, or would reasonably be considered confidential; and (iii) Customer Data shall be deemed Confidential Information of Customer.
9.2 General Obligations
Each Party agrees that it will during the Term and thereafter (a) not disclose the other Party’s Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use the other Party’s Confidential Information only to the extent necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose the other Party’s Confidential Information only to those of its employees, independent contractors, and service providers who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 9; and (d) protect all Confidential Information of the other Party from unauthorized use, access, or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) a Party from disclosing Confidential Information of the other Party to the extent required by applicable law, rule or regulation (including a court order or other government order); provided that such Party provides the other Party prior written notice of such disclosure, to the extent permitted by law, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; or (ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirors; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 9 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable).
9.3 Return or Destruction
Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information in tangible form, upon the termination of this Agreement; provided that, subject to ongoing compliance with the terms of this Agreement for as long as it processes or controls the Disclosing Party’s Confidential Information, (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto, (b) Receiving Party may retain copies of Disclosing Party’s Confidential Information solely to the extent required by law or by applicable professional standards which require such Party to retain copies of its working papers, and (c) Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination.
9.4 Feedback and AI Learnings
Notwithstanding the above or anything to the contrary herein, to the extent that Customer at any time provides Brandy with any feedback or suggestions regarding the Brandy Service, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall not be considered Confidential Information of Customer, and Brandy may use, disclose and exploit the Feedback in any manner it chooses. All Feedback provided by Customer is provided “AS IS” and without warranty or representation of any kind. In addition, Customer acknowledges and agrees that Brandy and Brandy Technology may learn from Customer’s use of the Services and any general improvements or learnings in Brandy’ algorithms or models relating to the Services that do not embody or reference Customer’s or its users’ or customers’ identity may be used by Brandy to improve the Services.
10. Miscellaneous
10.1 Compliance with Laws
Each Party shall comply with all laws, rules, regulations and ordinances applicable to its activities hereunder.
10.2 Assignment
Neither Party may assign this Agreement, or assign any of its rights or delegate any of its obligations under this Agreement, without the prior written consent of the other Party. Any purported assignment or delegation in violation of this paragraph is null and void. This Agreement will bind and insure to the benefit of each Party’s successor and permitted assigns. Notwithstanding the foregoing, Brandy may assign this Agreement to any acquirer of all or substantially all of its assets as they relate to this Agreement or in connection with a merger, acquisition, or reorganization.
10.3 Entire Agreement; Amendment
This Agreement contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto.
10.4 Notice
Brandy may give any notices issued in connection with this Agreement by email to Customer at the email address given by Customer when creating its account, and such notices shall be effective upon confirmation of transmission to Customer.
10.5 Force Majeure
Neither Party shall be liable or responsible to the other, nor be considered to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond the reasonable control of the Party and which could not have been prevented by reasonable diligence on the part of such Party, including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage; provided that the non-performing Party promptly provides written notice to the other Party of such cause preventing or delaying performance and resumes its performance as soon as practicable.
10.6 Publicity
Brandy shall have the right to use Customer’s name and logo on client lists published on Brandy’s website and in marketing materials provided that such use is previewed and pre-approved by Customer. Brandy may announce the relationship hereunder in a press release provided that Brandy obtains Customer’s prior approval of the wording of the release (not unreasonably withheld).
10.7 Choice of Law
This Agreement is and will be governed by and construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result.
10.8 Disputes; Arbitration
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between Customer and Brandy or its employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”). For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. Customer and Brandy agree as follows: (a) ANY CLAIMS BROUGHT BY A PARTY MUST BE BROUGHT IN SUCH PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (c) Brandy also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (d) the arbitrator will honor claims of privilege and privacy recognized at law; (e) the arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (f) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (g) the losing Party will pay the prevailing Party’s reasonable attorneys’ fees and expenses to the extent directed by the arbitrator. Notwithstanding the foregoing (i) either Customer or Brandy may bring an individual action in small claims court to the extent eligible, and (ii) either Party may seek emergency equitable relief before the state or federal courts located in Delaware in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Delaware for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.
10.9 Relationship of the Parties
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
10.10 Waiver
No waiver by either Party of any of the provision of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
10.11 Severability
If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction.
