1. SCOPE AND SUBJECT MATTER OF THE CONTRACT
1.1. These terms and conditions apply to Brain Support and the contracting party. The applicable Brain Support entity can be found below. The below entities together and separately are further referred to as “Brain Support”.
1.1.1. The Brain Support services are provided by, and you are contracting with, unless 1.1.2 or 1.1.3 applies:
Brain Support Ltd
Prieststown Road
Ahoghill
Ballymena
1.2. Brain Support provides all services to its customers on the basis of these general terms and conditions (hereinafter referred to as “GTC”), unless otherwise agreed in the respective contract. “Customer” within the meaning of these General Terms and Conditions are companies, legal entities under public law and special funds under public law.
1.3. These GTC apply to Brain Support services. Brain Support services within the meaning of these GTC include the provided software.
1.4. These GTC apply exclusively; conflicting or differing general terms and conditions of the Customer do not apply, unless Brain Support has expressly agreed to their application in writing. Differing general terms and conditions of the Customer shall not become part of the contract. If, in addition to the actual conclusion of the contract, the Customer requires to issue a separate order for its internal processing, any of the Customer’s General Terms and Conditions listed therein shall not apply.
1.5. Our services are directed exclusively at customers.
2. CONCLUSION, DURATION AND TERMINATION OF CONTRACT
2.1. The contract is concluded upon signature by both parties or online registration.
2.2. The term of the contract and, accordingly, the billing shall begin upon the date defined in the contract offer or on the date of the online registration.
2.3. This Agreement shall commence on the Effective Date and shall remain in effect for an initial period of twelve (12) months, in case of an annual subscription, 30 days in the case of a monthly subscription, unless a longer term has been contractually agreed on (“Regular Contract Term”); thereafter, this Agreement shall be extended for one or more additional periods of 12 months each (a “Renewal Term”), unless either party notifies the other party 2 days prior to the expiration of the then-current term that it does not wish to renew this Agreement. The termination does not require any justification. Payment must be cancelled from the payment portal for the termination to take effect. Brain Support offers a 14 day refund on subscription payments where the user has not cancelled the payment in the payment portal.
2.4. In case of a monthly subscription, the Agreement shall commence on the Effective Date and shall be renewed on a monthly basis (“Regular Contract Term”), unless a longer term has been contractually agreed on; thereafter, this Agreement shall be extended on a monthly basis (a “Monthly Renewal Term”), unless either party notifies the other party prior to the expiration of the then-current term that it does not wish to renew this Agreement. The termination of a monthly subscription does not require any justification. Payment must be cancelled from the payment portal for the termination to take effect. Brain Support offers a 14 day refund on subscription payments where the user has not cancelled the payment in the payment portal.
2.5. Either party may terminate this Agreement at any time by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
2.6. Brain Support is entitled to irrevocably delete all data stored during the term of the contract after termination of the contract. At the request of the Customer, a data export can be made according to the specifications of Brain Support. In this case, the Customer is responsible for storing their data on their local system in good time. In so far, as this concerns personal data, the provisions of the Data Processing Agreement (DPA) take precedence.
2.7. Upon termination of the contract, the Customer is obligated to delete without request all reproductions of the provided software and the Brain Support-code. If the Brain Support-code is not or not completely removed from the Customer’s domains/apps immediately after the end of the contract, Brain Support is entitled to demand the fee agreed with the Customer for the duration and until the Brain Support-code is completely removed from the Customer’s domains/apps. The removal of the Brain Support-code is to be regarded as incomplete, among other things, if data is still transmitted from the Customer’s domains/apps to the Brain Support servers.
2.8. In case of free subscriptions to the Brain Support software as part of the 5 day free trial. After seven (7) days of inactivity the Customer will be informed about the upcoming deactivation of their account. The account will be deactivated 7 days after such notice, in case the inactivity persists. The deactivation of the account does not impact Customer’s subscription, and the Customer can reactivate the account at any time before the content is deleted. After deletion, the user must make a new account.
2.9. In case Brain Support offers a free trial, the Customer can use it in full scope and free of charge during the free trial period. In case a free trial is offered, it is granted only once per Customer. In case the Customer converts to a fully paid plan, the provisions set out above apply.
2.9.1. In case a trial without automatic renewal is offered, then the customer will have the option to buy a full version of the service during this time. After the end of the trial the access to the functions of the Brain Support Systems are blocked. The user has the option, within another 30 days, to buy a full version of the service to the currently applicable conditions. Otherwise the access and configurations will be deleted.
2.9.2. In case a trial with automatic renewal is offered and if the Customer decides against the further use of the services provided by Brain Support, the Customer has the right to cancel the free-trial by cancelling their account in the online portal. The cancellation needs to occur on or before the trial ends. If the free trial is not canceled on time or the Customer wishes to continue using the service, the free trial will automatically convert to a fully paid plan.
2.10. Brain Support may offer additional services (“Add-ons”) that can be purchased exclusively in conjunction with Brain Support products and/or services. Brain Support has the right to change the available offerings of the Add-ons as it sees fit. If a Customer opts to purchase an Add-on, the purchase becomes binding upon confirmation, and the Add-ons are subject to these GTC in their entirety.
2.11. Any payment made in advance will not be refunded if the Agreement is terminated by one of the contracting parties.
3. PRICES AND TERM OF PAYMENT
3.1. The prices for the services used by the Customer are determined by the signed contract offer or completed online registration. Unless otherwise stated, the prices are monthly/annual net prices in GBP and are additional to any applicable statutory sales tax.
3.2. The calculation of the base fee to be paid by the Customer results from the contract offer or completed online registration.
3.2.7. In the case of monthly subscriptions under 2.4 Brain Support reserves the right to increase the Base Fee at any time, subject to 30 days’ notice, which will be sent to you by email.
3.4. Customers may only offset with counterclaims that have not been contradicted or that have been recognized by a court.
3.5. A change within the packages offered by Brain Support with a higher monthly/annual fee is possible at any time. The desired change must be indicated informally and requires confirmation by Brain Support in order to be effective. The change of the package is binding. A new Regular Contract Term does not begin with the change of the package.
3.6 Brain Support offers a 14 day refund policy. Requests for a refund, must be made in writing using the contact form or directly to info@brainsupport.co.uk. After the refund has been issued, all the customer’s data will be removed from the system after 5 working days.
3.7 If a user decides to upgrade to a yearly subscription from a monthly subscription, a pro rata refund will be provided for the remainder of the monthly subscription not used.
4. WARRANTY
4.1. By using Brain Support’ services, you understand and agree that all services provided are “as is” and “as available”. This means that Brain Support does not represent or warrant that:
4.1.1. The use of Brain Support’ services will meet your needs or requirements;
4.1.2. The use of Brain Support’ services will be uninterrupted, timely, secure or free from errors;
4.1.3. The information obtained by using Brain Support’ services will be accurate or reliable; nor that
4.1.4. Any defects in the operation or functionality of any Brain Support’ services provided will be repaired or corrected
4.2. The nature of the Brain Support services is conclusively regulated in the contract and the documentation of the Brain Support services. A particular quality cannot be derived from advertising materials or public statements if the specific content has not been expressly confirmed in writing by Brain Support. The assumption of a guarantee is only valid if Brain Support explicitly confirms it in writing.
4.3. Insofar as the Customer can assert claims for defects against Brain Support, regarding Brain Support’ services, through the course of providing a paid service (such as defects in the software or Brain Support-storage), the defects shall be eliminated by Brain Support, at Brain Support’ option. This shall be undertaken either by providing a modified version of the software or the Brain Support-code (e.g. an update), provided that this does not unreasonably impair the usability of the Brain Support Services.
4.4. In the case of a free service provision (Free Trial) Brain Support is not obliged to rectify defects.
4.5. Warranty claims of the Customer are limited to 30 days.
5. CUSTOMER’S OBLIGATIONS TO COOPERATE
5.1. Brain Support has the right to block certain IP-addresses of clients in case of misuse.
5.3. The Customer is solely responsible for checking whether the contractually agreed Brain Support services meet the legal requirements that apply to the Customer. In particular, it is solely the Customer’s responsibility to choose a configuration of the Brain Support services which complies with applicable data protection regulations. Brain Support does not provide legal advice
5.4. The Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer Data means information, data, and other content, in any form or medium, that is downloaded, or otherwise received, directly or indirectly (including via a third-party provider), from Customer (including from a Permitted User on Customer’s behalf) by or through Brain Support products and/or services, or provided by Customer to Brain Support to input into the Brain Support products and/or services. The Customer represents and warrants to Brain Support that the Customer has sufficient rights in the Customer Data to grant the rights granted to Company in Section 5.5 below and that the Customer Data does not infringe or otherwise violate the rights of any third party. Furthermore the Customer is solely responsible for the adherence to any potential applicable laws, regulations and policies of partner services and integrations in connection to Brain Support products and/or services. Brain Support shall not be liable for the failure of the Customer to adhere to applicable laws and regulations as well as any policies of services and integrations.
5.5. As between the parties, the Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data. The Customer hereby grants to Brain Support a non-exclusive, worldwide, irrevocable, transferable, sublicensable (through multiple tiers), fully paid-up, royalty-free right and license to use, copy store, transmit, modify, and display the Customer Data in order to: (a) provide the Company Products to Customer; and (b) perform such other actions as authorized or instructed by Customer in writing (email to suffice).
5.6. The Customer grants Brain Support the right, which may be revoked at any time, to use the Customer’s name and logo as a reference for its own advertising purposes for the duration of the contract.
6. GRANT OF RIGHTS
6.1. The Customer may only use the Brain Support services if this is necessary for the contractual use. Brain Support grants the Customer a simple, non-transferable right to use the Brain Support Services, limited in time to the duration of the contract. All copyrights and other intellectual or industrial property and exclusive rights to services developed or made available in accordance with the contract, in particular software, databases or know-how, shall remain with Brain Support or their Licensors.
6.2. The Customer is not permitted to modify or otherwise manipulate any software or Brain Support-codes provided by Brain Support. Furthermore, the Customer is not permitted to change or remove any marks, copyright notices and confidentiality notices in any software or other materials provided or made available by Brain Support. Mandatory legal rights of the Customer shall remain unaffected.
6.3. Brain Support may assume that the Customer has all necessary rights of use to all software installed or operated by the Customer interacting with the Brain Support services.
6.4. Brain Support may, under the conditions set out in this section, create anonymised analyses of aggregated data for which (partially) Customers and information resulting from the Customer’s use of the Brain Support services are used (“Analysis”). The data is anonymised and aggregated for analysis, so that it is impossible to draw conclusions about individual companies or individuals. The analytics data is used for product improvement, development of new products and services, resource and support improvement, product performance improvements, security and data integrity review, identification of industry trends and developments, creation of indices and anonymous benchmarking.
7. DATA PROTECTION AND CONFIDENTIALITY
7.1. For the processing of personal data on behalf of the Customer, the parties conclude a separate Data Processing Agreement. In the event of contradictions, their regulations precede these General Terms and Conditions.
7.2. Each party protects the confidential information of the other party from use or access by unauthorized individuals with reasonable care.
7.2.1. “Confidential Information” means (i) any information exchanged between the parties in the context of or in connection with this Agreement, either expressly marked in writing as “confidential” or in a similar manner, (ii) oral information expressly designated by the issuing party as confidential, and (iii) regardless of the above provisions, any information from which it is clear that they need to be kept confidential.
7.2.2. The obligation of confidentiality does not apply to information that is already generally known at the time of conclusion of the contract or which can verifiably become subsequently known without breach of the contractual obligations. The obligation of confidentiality also does not apply to confidential information to the extent that the disclosing party may prove to them that it (i) has obtained or received it lawfully from third parties; (ii) for the provision of contractual services to the other party, must be passed on to third parties legitimately engaged for this purpose; (iii) must be disclosed by law or by decision of a court or an order of an authority; or (iv) by professionally committed advisors and lawyers.
7.2.3. In the event that one of the parties has reason to believe that there has been an unauthorized loss, access or disclosure of the other party’s confidential information, it shall notify the other party without delay.
7.3. Nothing herein shall limit Brain Support from disclosing the terms of this contract to potential financing sources, security holders, strategic partners and advisors.
8. RIGHT OF MODIFICATIONS
8.1. Brain Support provides the services according to the respective technological state of the art and in such a way that they are oriented to the interest of all Customers of Brain Support. Brain Support is entitled to adapt and change the range of services offered by Brain Support to general technical progress. Brain Support does not have to pay attention to possible downward compatibility with third-party software that is not up-to-date and/or to possible interoperability with third-party software; unless such interoperability is expressly agreed as a quality. Brain Support will announce significant technical changes as far as possible and reasonably, in good time in advance. If a technical change in this sense represents an unacceptable change for the Customer, the Customer shall have a special right of termination.
8.2. Changes to these GTC will be offered by Brain Support in text form (a) in the case of monthly subscriptions, no later than thirty (30) days before the proposed date of the Renewal Term, or (b) in the case of all other subscriptions, no later than two (2) months before the proposed date of their effective date, but no later than upon the beginning of the renewal term. The contracting party shall be considered to have given its consent if it has not notified its rejection before the proposed date of effectiveness of the amendments. Brain Support will specifically draw the Customer’s attention to this consent requirement.
9. LIABILITY
9.1. Brain Support is liable in accordance with the statutory provisions in the event of gross negligence, intentional action, malice or a guarantee as well as in the event of injury to life, body or health. Liability pursuant to product liability law also remains unaffected.
9.2. In all other cases, Brain Support shall only be liable in the event of negligent breach of essential contractual obligations; thus an obligation which is essential for the achievement of the purpose of the contract (cardinal obligation). In the latter case, Brain Support’ liability shall be limited to the amount of damage that is foreseeable and typical for the type of subject matter of the contract.
9.3. In the case of liability under Section 9.2, the Customer expressly understands and agrees that any claim against Brain Support will be limited to the amount the Customer has paid in the previous 12 months, if any, for use of all Brain Support products and/or services. Brain Support will not be liable for any indirect, incidental, consequential or exemplary loss or damage, including fines and penalties, which may be incurred by you as a result of using our services or as a result of any changes, data loss or corruption, cancellation, loss of access or downtime, even if informed of the possibility of such damages in advance, to the full extent that applicable limitation of liability laws allow. In case of prepayment for long contract terms the liability is measured on the equivalent paid within one year.
9.4. Insofar as the liability of Brain Support is excluded or limited this also applies to the personal liability of the employees, other employees, institutions, representatives and vicarious agents of Brain Support.
9.5. In the event of liability for intent, gross negligence or personal injury, the statutory limitation periods apply. Otherwise, a limitation period of one year applies to all claims for damages or compensation of futile expenses of the Customer in the event of contractual and non-contractual liability. The limitation period begins in accordance with the statutory provisions. However, it shall begin at the latest at the end of 5 years from the date on which the claim has amounted.
10. MISCELLANEOUS
10.1. Brain Support is entitled to use subcontractors in whole or in part for the services owed. Any deviating provisions of a separate Data Processing Agreement shall remain unaffected.
10.2. The contractual relationship between the contracting parties will be governed by and construed in accordance with the applicable laws of the following jurisdictions, without regard to international private law regulations or principles leading to the application of other laws:
10.3. Amendments and additions to the contract as well as all declarations of intent relevant to the contract and declarations for the exercise of design rights, in particular terminations, reminders or deadlines, must be in writing, unless another form in the contract is expressly provided for. This also applies to the renunciation of the written form requirement.
10.4. These GTC as well as all other texts throughout the Brain Support website may be translated from English to other languages. These are unofficial translations and are only provided as convenience translations. They should therefore be interpreted in accordance with the English language version which will prevail in the event of any discrepancy between the English version and the translation. Brain Support assumes no liability for any errors, omissions or ambiguities in the translations. Any person or entity choosing to rely on the translated content does so at their own risk. If in doubt, please always refer to the official English language version.
10.5. Should one or more provisions of these General Terms and Conditions be ineffective, the remainder of the terms shall remain effective. The invalid provision shall be replaced by the relevant statutory provision.
1.1. These terms and conditions apply to Brain Support and the contracting party. The applicable Brain Support entity can be found below. The below entities together and separately are further referred to as “Brain Support”.
1.1.1. The Brain Support services are provided by, and you are contracting with, unless 1.1.2 or 1.1.3 applies:
Brain Support Ltd
Prieststown Road
Ahoghill
Ballymena
1.2. Brain Support provides all services to its customers on the basis of these general terms and conditions (hereinafter referred to as “GTC”), unless otherwise agreed in the respective contract. “Customer” within the meaning of these General Terms and Conditions are companies, legal entities under public law and special funds under public law.
1.3. These GTC apply to Brain Support services. Brain Support services within the meaning of these GTC include the provided software.
1.4. These GTC apply exclusively; conflicting or differing general terms and conditions of the Customer do not apply, unless Brain Support has expressly agreed to their application in writing. Differing general terms and conditions of the Customer shall not become part of the contract. If, in addition to the actual conclusion of the contract, the Customer requires to issue a separate order for its internal processing, any of the Customer’s General Terms and Conditions listed therein shall not apply.
1.5. Our services are directed exclusively at customers.
2. CONCLUSION, DURATION AND TERMINATION OF CONTRACT
2.1. The contract is concluded upon signature by both parties or online registration.
2.2. The term of the contract and, accordingly, the billing shall begin upon the date defined in the contract offer or on the date of the online registration.
2.3. This Agreement shall commence on the Effective Date and shall remain in effect for an initial period of twelve (12) months, in case of an annual subscription, 30 days in the case of a monthly subscription, unless a longer term has been contractually agreed on (“Regular Contract Term”); thereafter, this Agreement shall be extended for one or more additional periods of 12 months each (a “Renewal Term”), unless either party notifies the other party 2 days prior to the expiration of the then-current term that it does not wish to renew this Agreement. The termination does not require any justification. Payment must be cancelled from the payment portal for the termination to take effect. Brain Support offers a 14 day refund on subscription payments where the user has not cancelled the payment in the payment portal.
2.4. In case of a monthly subscription, the Agreement shall commence on the Effective Date and shall be renewed on a monthly basis (“Regular Contract Term”), unless a longer term has been contractually agreed on; thereafter, this Agreement shall be extended on a monthly basis (a “Monthly Renewal Term”), unless either party notifies the other party prior to the expiration of the then-current term that it does not wish to renew this Agreement. The termination of a monthly subscription does not require any justification. Payment must be cancelled from the payment portal for the termination to take effect. Brain Support offers a 14 day refund on subscription payments where the user has not cancelled the payment in the payment portal.
2.5. Either party may terminate this Agreement at any time by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
2.6. Brain Support is entitled to irrevocably delete all data stored during the term of the contract after termination of the contract. At the request of the Customer, a data export can be made according to the specifications of Brain Support. In this case, the Customer is responsible for storing their data on their local system in good time. In so far, as this concerns personal data, the provisions of the Data Processing Agreement (DPA) take precedence.
2.7. Upon termination of the contract, the Customer is obligated to delete without request all reproductions of the provided software and the Brain Support-code. If the Brain Support-code is not or not completely removed from the Customer’s domains/apps immediately after the end of the contract, Brain Support is entitled to demand the fee agreed with the Customer for the duration and until the Brain Support-code is completely removed from the Customer’s domains/apps. The removal of the Brain Support-code is to be regarded as incomplete, among other things, if data is still transmitted from the Customer’s domains/apps to the Brain Support servers.
2.8. In case of free subscriptions to the Brain Support software as part of the 5 day free trial. After seven (7) days of inactivity the Customer will be informed about the upcoming deactivation of their account. The account will be deactivated 7 days after such notice, in case the inactivity persists. The deactivation of the account does not impact Customer’s subscription, and the Customer can reactivate the account at any time before the content is deleted. After deletion, the user must make a new account.
2.9. In case Brain Support offers a free trial, the Customer can use it in full scope and free of charge during the free trial period. In case a free trial is offered, it is granted only once per Customer. In case the Customer converts to a fully paid plan, the provisions set out above apply.
2.9.1. In case a trial without automatic renewal is offered, then the customer will have the option to buy a full version of the service during this time. After the end of the trial the access to the functions of the Brain Support Systems are blocked. The user has the option, within another 30 days, to buy a full version of the service to the currently applicable conditions. Otherwise the access and configurations will be deleted.
2.9.2. In case a trial with automatic renewal is offered and if the Customer decides against the further use of the services provided by Brain Support, the Customer has the right to cancel the free-trial by cancelling their account in the online portal. The cancellation needs to occur on or before the trial ends. If the free trial is not canceled on time or the Customer wishes to continue using the service, the free trial will automatically convert to a fully paid plan.
2.10. Brain Support may offer additional services (“Add-ons”) that can be purchased exclusively in conjunction with Brain Support products and/or services. Brain Support has the right to change the available offerings of the Add-ons as it sees fit. If a Customer opts to purchase an Add-on, the purchase becomes binding upon confirmation, and the Add-ons are subject to these GTC in their entirety.
2.11. Any payment made in advance will not be refunded if the Agreement is terminated by one of the contracting parties.
3. PRICES AND TERM OF PAYMENT
3.1. The prices for the services used by the Customer are determined by the signed contract offer or completed online registration. Unless otherwise stated, the prices are monthly/annual net prices in GBP and are additional to any applicable statutory sales tax.
3.2. The calculation of the base fee to be paid by the Customer results from the contract offer or completed online registration.
3.2.7. In the case of monthly subscriptions under 2.4 Brain Support reserves the right to increase the Base Fee at any time, subject to 30 days’ notice, which will be sent to you by email.
3.4. Customers may only offset with counterclaims that have not been contradicted or that have been recognized by a court.
3.5. A change within the packages offered by Brain Support with a higher monthly/annual fee is possible at any time. The desired change must be indicated informally and requires confirmation by Brain Support in order to be effective. The change of the package is binding. A new Regular Contract Term does not begin with the change of the package.
3.6 Brain Support offers a 14 day refund policy. Requests for a refund, must be made in writing using the contact form or directly to info@brainsupport.co.uk. After the refund has been issued, all the customer’s data will be removed from the system after 5 working days.
3.7 If a user decides to upgrade to a yearly subscription from a monthly subscription, a pro rata refund will be provided for the remainder of the monthly subscription not used.
4. WARRANTY
4.1. By using Brain Support’ services, you understand and agree that all services provided are “as is” and “as available”. This means that Brain Support does not represent or warrant that:
4.1.1. The use of Brain Support’ services will meet your needs or requirements;
4.1.2. The use of Brain Support’ services will be uninterrupted, timely, secure or free from errors;
4.1.3. The information obtained by using Brain Support’ services will be accurate or reliable; nor that
4.1.4. Any defects in the operation or functionality of any Brain Support’ services provided will be repaired or corrected
4.2. The nature of the Brain Support services is conclusively regulated in the contract and the documentation of the Brain Support services. A particular quality cannot be derived from advertising materials or public statements if the specific content has not been expressly confirmed in writing by Brain Support. The assumption of a guarantee is only valid if Brain Support explicitly confirms it in writing.
4.3. Insofar as the Customer can assert claims for defects against Brain Support, regarding Brain Support’ services, through the course of providing a paid service (such as defects in the software or Brain Support-storage), the defects shall be eliminated by Brain Support, at Brain Support’ option. This shall be undertaken either by providing a modified version of the software or the Brain Support-code (e.g. an update), provided that this does not unreasonably impair the usability of the Brain Support Services.
4.4. In the case of a free service provision (Free Trial) Brain Support is not obliged to rectify defects.
4.5. Warranty claims of the Customer are limited to 30 days.
5. CUSTOMER’S OBLIGATIONS TO COOPERATE
5.1. Brain Support has the right to block certain IP-addresses of clients in case of misuse.
5.3. The Customer is solely responsible for checking whether the contractually agreed Brain Support services meet the legal requirements that apply to the Customer. In particular, it is solely the Customer’s responsibility to choose a configuration of the Brain Support services which complies with applicable data protection regulations. Brain Support does not provide legal advice
5.4. The Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer Data means information, data, and other content, in any form or medium, that is downloaded, or otherwise received, directly or indirectly (including via a third-party provider), from Customer (including from a Permitted User on Customer’s behalf) by or through Brain Support products and/or services, or provided by Customer to Brain Support to input into the Brain Support products and/or services. The Customer represents and warrants to Brain Support that the Customer has sufficient rights in the Customer Data to grant the rights granted to Company in Section 5.5 below and that the Customer Data does not infringe or otherwise violate the rights of any third party. Furthermore the Customer is solely responsible for the adherence to any potential applicable laws, regulations and policies of partner services and integrations in connection to Brain Support products and/or services. Brain Support shall not be liable for the failure of the Customer to adhere to applicable laws and regulations as well as any policies of services and integrations.
5.5. As between the parties, the Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data. The Customer hereby grants to Brain Support a non-exclusive, worldwide, irrevocable, transferable, sublicensable (through multiple tiers), fully paid-up, royalty-free right and license to use, copy store, transmit, modify, and display the Customer Data in order to: (a) provide the Company Products to Customer; and (b) perform such other actions as authorized or instructed by Customer in writing (email to suffice).
5.6. The Customer grants Brain Support the right, which may be revoked at any time, to use the Customer’s name and logo as a reference for its own advertising purposes for the duration of the contract.
6. GRANT OF RIGHTS
6.1. The Customer may only use the Brain Support services if this is necessary for the contractual use. Brain Support grants the Customer a simple, non-transferable right to use the Brain Support Services, limited in time to the duration of the contract. All copyrights and other intellectual or industrial property and exclusive rights to services developed or made available in accordance with the contract, in particular software, databases or know-how, shall remain with Brain Support or their Licensors.
6.2. The Customer is not permitted to modify or otherwise manipulate any software or Brain Support-codes provided by Brain Support. Furthermore, the Customer is not permitted to change or remove any marks, copyright notices and confidentiality notices in any software or other materials provided or made available by Brain Support. Mandatory legal rights of the Customer shall remain unaffected.
6.3. Brain Support may assume that the Customer has all necessary rights of use to all software installed or operated by the Customer interacting with the Brain Support services.
6.4. Brain Support may, under the conditions set out in this section, create anonymised analyses of aggregated data for which (partially) Customers and information resulting from the Customer’s use of the Brain Support services are used (“Analysis”). The data is anonymised and aggregated for analysis, so that it is impossible to draw conclusions about individual companies or individuals. The analytics data is used for product improvement, development of new products and services, resource and support improvement, product performance improvements, security and data integrity review, identification of industry trends and developments, creation of indices and anonymous benchmarking.
7. DATA PROTECTION AND CONFIDENTIALITY
7.1. For the processing of personal data on behalf of the Customer, the parties conclude a separate Data Processing Agreement. In the event of contradictions, their regulations precede these General Terms and Conditions.
7.2. Each party protects the confidential information of the other party from use or access by unauthorized individuals with reasonable care.
7.2.1. “Confidential Information” means (i) any information exchanged between the parties in the context of or in connection with this Agreement, either expressly marked in writing as “confidential” or in a similar manner, (ii) oral information expressly designated by the issuing party as confidential, and (iii) regardless of the above provisions, any information from which it is clear that they need to be kept confidential.
7.2.2. The obligation of confidentiality does not apply to information that is already generally known at the time of conclusion of the contract or which can verifiably become subsequently known without breach of the contractual obligations. The obligation of confidentiality also does not apply to confidential information to the extent that the disclosing party may prove to them that it (i) has obtained or received it lawfully from third parties; (ii) for the provision of contractual services to the other party, must be passed on to third parties legitimately engaged for this purpose; (iii) must be disclosed by law or by decision of a court or an order of an authority; or (iv) by professionally committed advisors and lawyers.
7.2.3. In the event that one of the parties has reason to believe that there has been an unauthorized loss, access or disclosure of the other party’s confidential information, it shall notify the other party without delay.
7.3. Nothing herein shall limit Brain Support from disclosing the terms of this contract to potential financing sources, security holders, strategic partners and advisors.
8. RIGHT OF MODIFICATIONS
8.1. Brain Support provides the services according to the respective technological state of the art and in such a way that they are oriented to the interest of all Customers of Brain Support. Brain Support is entitled to adapt and change the range of services offered by Brain Support to general technical progress. Brain Support does not have to pay attention to possible downward compatibility with third-party software that is not up-to-date and/or to possible interoperability with third-party software; unless such interoperability is expressly agreed as a quality. Brain Support will announce significant technical changes as far as possible and reasonably, in good time in advance. If a technical change in this sense represents an unacceptable change for the Customer, the Customer shall have a special right of termination.
8.2. Changes to these GTC will be offered by Brain Support in text form (a) in the case of monthly subscriptions, no later than thirty (30) days before the proposed date of the Renewal Term, or (b) in the case of all other subscriptions, no later than two (2) months before the proposed date of their effective date, but no later than upon the beginning of the renewal term. The contracting party shall be considered to have given its consent if it has not notified its rejection before the proposed date of effectiveness of the amendments. Brain Support will specifically draw the Customer’s attention to this consent requirement.
9. LIABILITY
9.1. Brain Support is liable in accordance with the statutory provisions in the event of gross negligence, intentional action, malice or a guarantee as well as in the event of injury to life, body or health. Liability pursuant to product liability law also remains unaffected.
9.2. In all other cases, Brain Support shall only be liable in the event of negligent breach of essential contractual obligations; thus an obligation which is essential for the achievement of the purpose of the contract (cardinal obligation). In the latter case, Brain Support’ liability shall be limited to the amount of damage that is foreseeable and typical for the type of subject matter of the contract.
9.3. In the case of liability under Section 9.2, the Customer expressly understands and agrees that any claim against Brain Support will be limited to the amount the Customer has paid in the previous 12 months, if any, for use of all Brain Support products and/or services. Brain Support will not be liable for any indirect, incidental, consequential or exemplary loss or damage, including fines and penalties, which may be incurred by you as a result of using our services or as a result of any changes, data loss or corruption, cancellation, loss of access or downtime, even if informed of the possibility of such damages in advance, to the full extent that applicable limitation of liability laws allow. In case of prepayment for long contract terms the liability is measured on the equivalent paid within one year.
9.4. Insofar as the liability of Brain Support is excluded or limited this also applies to the personal liability of the employees, other employees, institutions, representatives and vicarious agents of Brain Support.
9.5. In the event of liability for intent, gross negligence or personal injury, the statutory limitation periods apply. Otherwise, a limitation period of one year applies to all claims for damages or compensation of futile expenses of the Customer in the event of contractual and non-contractual liability. The limitation period begins in accordance with the statutory provisions. However, it shall begin at the latest at the end of 5 years from the date on which the claim has amounted.
10. MISCELLANEOUS
10.1. Brain Support is entitled to use subcontractors in whole or in part for the services owed. Any deviating provisions of a separate Data Processing Agreement shall remain unaffected.
10.2. The contractual relationship between the contracting parties will be governed by and construed in accordance with the applicable laws of the following jurisdictions, without regard to international private law regulations or principles leading to the application of other laws:
10.3. Amendments and additions to the contract as well as all declarations of intent relevant to the contract and declarations for the exercise of design rights, in particular terminations, reminders or deadlines, must be in writing, unless another form in the contract is expressly provided for. This also applies to the renunciation of the written form requirement.
10.4. These GTC as well as all other texts throughout the Brain Support website may be translated from English to other languages. These are unofficial translations and are only provided as convenience translations. They should therefore be interpreted in accordance with the English language version which will prevail in the event of any discrepancy between the English version and the translation. Brain Support assumes no liability for any errors, omissions or ambiguities in the translations. Any person or entity choosing to rely on the translated content does so at their own risk. If in doubt, please always refer to the official English language version.
10.5. Should one or more provisions of these General Terms and Conditions be ineffective, the remainder of the terms shall remain effective. The invalid provision shall be replaced by the relevant statutory provision.