- The primary functionality of the Brainial-service (hereinafter the Service), which is developed and provided by Brainial B.V., is to provide the Customer with analysis and aggregation of data about certain companies, trends and topics that the Customer wishes to monitor, the documents that Customer wishes to analyse, aggregate and enrich (hereinafter called the Targets) and to provide Customer with relevant insights and information.
- The data made available by Brainial through the Service is a combination of internal data and publicly available information about the Targets (referred to in these general terms as Third Party Materials). Third Party Materials are governed as set out in Article 7.1 of these general terms.
- The functionality of the Service also extends to Authorised Users, which are individual users authorised by the Customer to access the Customer’s account. Authorised Users may include the Customer’s employees, consultants, contractors or agents.
- These general terms apply to the use of the Service which are described in detail in an order form agreement between Brainial and the Customer (the Order Form).
- Unless otherwise agreed upon in writing, these general terms apply to the use of the Service. These general terms also apply to every offer made by Brainial.
- All proposals and offers made by Brainial are non-binding, unless expressly agreed otherwise. An offer or proposal only applies to the assignment specified therein (and not to possible future assignments). The Customer guarantees that all information provided by the Customer, through the Order Form or otherwise is correct and complete.
- These general terms can be found on brainial.com. At your request and free of charge, we can also send them to you by email.
- AGREEMENT TERM, RENEWAL AND TERMINATION
- Brainial and the Customer enter into an agreement through the Order Form for a period of 12 months, unless expressly agreed otherwise in writing.
- An Order Form will be automatically renewed for consecutive periods of twelve months upon expiration of either the end date stated on the Order Form or the previous automatically renewed 12 month period, unless either Brainial or the Customer terminates the Order Form at least 60 days prior to the end date stated on the Order Form or the automatically renewed 12 month period by written notice to the other Party.
- Article 8, 12 and 14 shall remain valid after the termination of the agreement as set out in the Order Form, if and insofar as applicable.
- If either the Customer or Brainial is in material breach of these general terms or the Order Form, the other party shall issue a written notice of default with a term for the breaching party to remedy the breach within 30 days. If the breaching party fails to remedy the breach within the given term, the other party may terminate the Order Form.
- If Brainial terminates the Order Form due to a breach of the provisions set out in Article 4 all unpaid fees for the remainder of the Order Form immediately fall due for payment.
- Unless explicitly stated otherwise, prices as offered by Brainial or prices included in the Order Form are excluding possible expenses or any taxes or levies imposed by the relevant authorities.
- Brainial reserves the right to an annual indexation of the price for the Service. If, as a result of the indexation, the price increase is more than the increase in the Consumer Price Index (Consumentenprijsindex) as published by the Dutch Bureau of Statistics (Centraal bureau voor de statistiek), the Customer may cancel the Order Form within 30 days after the announcement. The Order Form will then terminate on the day the new prices become applicable.
- The Customer shall pay the fees included in the Order Form, without any deduction or set-off, within 30 days from the invoice date.
- Brainial shall invoice the Customer for the fees listed on the Order Form plus any taxes due over such fees.
- If the Customer fails to comply with Section 4.1, and after having been given a notice of default and a reasonable term of 14 days to remedy the breach, the Customer is in default, in derogation of Article 2.4. Customer shall pay a finance surcharge on overdue amounts, equal to the highest (commercial) interest rate permitted by applicable law. Interest shall compound monthly. Customer shall bear all of Brainial’s costs of collection of overdue fees, including reasonable attorneys’ fees.
- USE OF THE SERVICE; AUTHORISED USER ACCOUNTS AND USER RIGHTS
- Brainial grants the Customer for the agreed duration the right of usage for an agreed number of users to use the Service as stated on the Order Form. Only the Customer and its designated Authorised Users have the right to use the Service.
- The Customer agrees not to permit any person who is an employee or agent of a Brainial competitor to be an Authorised User.
- The Customer has the right to use and exploit the Service to the extent agreed and for its own business purposes only. Use of the Service shall require a user identification and password (hereinafter a User ID). The Customer or Authorised User is obliged to keep the provided User ID secret. The Customer is responsible for all use of the Service under its User IDs.
- CONDITIONS OF USE OF THE SERVICE
- If the Customer or an Authorised User is in breach of these general terms or other instructions issued by Brainial, Brainial may take the appropriate measures it deems necessary, including discontinuing the use of the applicable User ID.
- If the Customer or an Authorised User is in breach of these general terms or other instructions issued by Brainial, Brainial may stop providing the Service to the Customer and cancel the User IDs of the Customer, if the Customer fails to remedy the breach within 14 days after notification.
- The Customer is responsible for direct damages and expenses to Brainial or any third parties, caused by the Customer’s acts or omissions which are against these general terms, the Order Form, instructions issued by Brainial or any applicable laws or regulations.
- The use of bots, scripts or any other form of software for mass account creation or automated mass data dumping or extraction is not allowed.
- The Customer shall not distribute, publish, copy, resell, transfer or otherwise make available to third parties any data, material or content related to or included in the Service, except with Brainial’s specific prior written consent.
- The Customer shall not spread any content that is unlawful, offensive, upsetting, intended to disgust, threatening, libellous, defamatory, obscene or otherwise objectionable. Examples of such objectionable content include, but are not limited to, content that is:
1. Unlawful or promoting unlawful activity;
2. Defamatory, discriminatory, or mean-spirited content, including references or commentary about religion, race, sexual orientation, gender, national/ethnic origin, or other targeted groups;
3. Spam, machine – or randomly – generated, constituting unauthorised or unsolicited advertising, chain letters, any other form of unauthorised solicitation, or any form of lottery or gambling;
4. Containing or installing any viruses, worms, malware, trojan horses, or other content that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware or telecommunications equipment or to damage or obtain unauthorised access to any data or other information of a third person;
5. Infringing on any proprietary rights of any Party, including patent, trademark, trade secret, copyright, right of publicity or other rights;
6. Impersonating any person or entity including the Company and its employees or representatives;
7. Violating the privacy of any third person;
8. Containing false information and features.
- The Customer is responsible for all costs incurred from or related to the use of the Service, such as creating of Customer’s technical infrastructure and its maintenance, data connections and fees related thereto.
- The Customer is obliged to return or at the request of Brainial to destroy any and all such data, material or content related to the Service in its possession latest at the expiry of its user rights. The data, materials or content referred to in Article 6.8 explicitly do not include Customer Data as specified in Article 8.
- CONTENT THIRD PARTY MATERIALS
- Brainial does not have control over the actual content of the Third Party Materials to which the Services provide access and therefore takes no responsibility in relationship to, and shall not be held liable by the Customer for damages arising from, the content, or omissions therein, of Third Party Materials.
- The Customer is solely responsible for the accuracy and completeness of all data provided by the Customer or by an Authorised User (Customer Data) for use in the Service. Brainial shall not modify the Customer Data and Brainial makes no claim to any right of ownership on Customer Data.
- Brainial may use the Customer Data to carry out its obligations under the Order Form and these general terms, and for no other purpose.
- Brainial shall take sufficient technical and organisational measures to keep personal data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access; and, must deal with the information only in accordance with Customer’s instructions, provided they are reasonable and lawful.
- Brainial shall back up Customer Data once in each 24-hour period. Customer’s custom models shall be backed up by Brainial each time a new version is made live on the Service.
- Backups shall be stored by Brainial in secured locations that are geographically dispersed. Backups shall be available for restore as follows:
1. Nightly Backups: maximum 2 weeks history (counting from yesterday)
2. Sunday Backups: maximum 3 months history (counting from yesterday)
3. Monthly Backups (1st Sunday of each month): maximum 1 year history (counting from yesterday)
- Upon the termination of the Order Form, Brainial shall no longer have the obligation to preserve or back-up any Customer Data. Upon termination of the Order Form, Brainial shall provide the Customer with an export of all Customer Data, Customer’s training data and Customer’s specific models within 30 days.
- AVAILABILITY OF THE SOFTWARE AND TECHNICAL SUPPORT
- The use of the Service requires a good, fast and stable internet connection. An insufficient internet connection may result in a poor user experience of the Service.
- The technical support team of Brainial is available on weekdays (Monday through Friday), excluding Dutch national holidays, from 8:30 am till 17:00 pm CET.
- Brainial ensures that the Service will be kept available for use for the entire agreed duration, as agreed upon in the Order Form. Brainial shall make all reasonable effort to keep the Service up and running 24 hours per day, 7 days per week.
- Brainial shall take all reasonable effort to ensure the functioning and maintenance of the Service. Usually, maintenance of the Service shall not result in downtime of the Service, but to ensure that downtime is of the least inconvenience, maintenance shall mostly take place outside of office hours.
- If downtime due to maintenance is expected by Brainial, Brainial shall notify the Customer at least 7 days in advance or as soon as possible.
- In addition to Article 15 of these general terms, Brainial shall not be liable for damages, neither direct nor indirect, resulting from downtime of the Service.
- Brainial may alter the Service. This includes, but is not limited to, changing, removing or adding certain features or functionalities of the Service. If Brainial plans to remove any functionalities or customer-specific functions, Brainial shall notify the Customer 6 months prior to the removal, or as soon as possible. Brainial will mark these functions as deprecated.
- In addition to Article 7 of these terms, Brainial does not guarantee that the Service is completely free of error. Customer shall inform Brainial as soon as possible if the Customer notices any error, bugs or malfunctions in the Service.
- Brainial has the right to employ third parties to (partially) perform activities or services, if Brainial is of the opinion that this is necessary for the due exercise of the Service. Articles 7:404, 7:407 section 2 and 7:409 of the Dutch Civil Code (Burgerlijk Wetboek) are not applicable.
- Examples of (services provided by) third parties as referred to in Article 10.1 are AWS, Google and Microsoft Azure.
- Brainial or the Customer shall not be bound to fulfil any obligation as agreed upon if prevented from doing so by force majeure. Parties understand force majeure to be including, but not limited to, strikes, company sit-ins, blockades, embargoes, government measures, war, revolution or any similar state, power failures, faults in electronic communication lines, cable breaks, pandemics, fires, explosions, water damage, lightning damage, natural disasters, flooding or earthquake.
- In case of force majeure, neither Brainial nor the Customer is liable for any resulting damages.
- If the force majeure takes place for a period that exceeds 60 days, the Order Form can be terminated in writing. In that case, parties have no right to recover damages.
- All existing and future intellectual property rights to the Service and its content as well as to any possible amendments made thereto, belong exclusively to Brainial or its partners. Intellectual Property Rights (IPR): means property that includes intangible creations of the human intellect. Such creations can include, but are not limited to copyrights, patents, designs, trademarks, trade secrets, know-how, information, documents, reports, source code, systems, solutions and/or data.
- The Customer and Authorised User only gain the right to use the Service. The Customer and Authorised User cannot claim any of the aforementioned intellectual property rights.
- By way of derogation from Article 12.1, if the intellectual property of certain data belongs to Customer, such as Customer Data, Customer’s specific training data and Customer’s specific models, the intellectual property rights remain with the Customer.
- The Customer grants Brainial the right to use its name and logo on Brainial’s websites and its marketing materials to identify Customer as a customer of Brainial.
- The Customer assigns all rights, title and interest in any feedback Customer provides Brainial. If for any reason such assignment is ineffective, Customer agrees to grant Brainial a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and licence to use, reproduce, disclose, sub-licence, distribute, modify and exploit such feedback without restriction.
- Brainial and the Customer shall not disclose any of the confidential information provided by the other party (or by an Authorised User) to third parties unless it is required by a statutory or professional obligation.
- Confidential information includes all information which the Customer or Brainial designates as confidential or which by its nature can be classified as confidential. The following information shall in any case be regarded as confidential:
1. Customer data;
2. All information related to research, development, trade secrets or information related to company matters;
3. Personal data as intended in the General Data Protection Regulation (GDPR)
- Confidential information shall not include any information which:
1. is already in the public domain or becomes available to the public through no breach of these general terms;
2. is received by a either Brainial or the Customer independently from any third party which is not bound by any confidentiality obligation with respect to such information;
3. was already lawfully in the possession of the recipient before its disclosure under these general terms took place;
4. is independently developed by either Brainial or the Customer.
- Brainial and the Customer shall:
1. maintain strict confidentiality with respect to confidential information;
2. without the prior written consent of the other party not: distribute, disclose or disseminate confidential information to any person other than those of its employees or advisors, who reasonably need to know such information for the purpose of the performance of the obligations under these terms and the Order Form;
3. use the Confidential Information solely for the purposes for which it is disclosed;
4. make copies of the Confidential Information only to the extent strictly necessary to the purpose for which it was disclosed;
5. keep the existence, nature and content of the Order Form confidential, together with the fact that discussions are taking place concerning the business and affairs of the parties.
- Brainial and the Customer shall, upon first request by the other party, either:
1. return all copies of the confidential information to the other party; or
2. destroy the confidential information and confirm in writing to the other party that this has been done.
- The Customer shall ensure that the Authorised User, or other third parties to which the confidential information is disclosed, are aware of the non-disclosure obligation as set out in this Article 14 and shall see to it that those parties shall fully comply with the obligation as set out in this Article.
- To the maximum extent permitted under applicable law, Brainial, on its own behalf and on behalf of its affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Service. This includes: implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice.
- Without limitation to the foregoing, Brainial provides no warranty or undertaking, and makes no representation of any kind that the Service will meet Customer’s requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
- The Customer indemnifies Brainial for all claims by third parties relating to the data that the Customer collects, saves or processes by means of the Service. Brainial is not liable for the content of the data which the Customer collects, saves or processes within the framework of the Service.
- If, as opposed to the provisions in Article 15.5, Brainial is liable for damages by law, Brainial’s total liability is limited to a maximum sum of the lower of (i) the amount of the fees paid or payable by Customer to Brainial under such relevant Order Form during the 12 months prior to the event giving rise to such loss, cost, claim or damages (ii) the maximum amount paid out by Brainial’s insurer.
- Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer. This may result in inapplicability of the above exclusions and limitations to the Customer. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.
- All claims and defences against Brainial shall lapse after one year after the claim or defence has been discovered.
- The limitations set out in this Article 15 do not apply if damage is the result of wilful misconduct or gross negligence from Brainial’s side.
- NULLITY, ENFORCEABILITY AND SEVERABILITY
- The invalidity or unenforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision of this agreement. Any such invalid or unenforceable provision shall be replaced by a provision that is considered to be valid and enforceable and whose interpretation shall be as close as possible to the intent of the invalid provision.
- Brainial and the Customer waive their rights to partially rescind or annul, or to invoke the recission or annulment of these general terms.
- Brainial and Customer are not allowed to assign or transfer or purport to assign or transfer any of its rights or obligations under these terms or any agreement between the Customer and Brainial without the prior written consent of the other party.
- Brainial may change these general terms at all times. The latest version of the terms will always apply. In case of a substantial amendment, the Customer may cancel the Order Form within 30 days after the announcement. The Order Form will then terminate on the day the new conditions come into effect.
- APPLICABLE LAW AND JURISDICTION
- The Order Form and these general terms shall be governed by and construed in accordance with the laws of the Netherlands.
- Any dispute resulting from or arising in connection with (fulfilment of) the Order Form and these general terms that cannot be settled in an amicable fashion shall be submitted to the competent court of Midden-Nederland.
This document was last updated on February 4, 2021