Terms & Conditions
Terms & Conditions
These BrainFreeze Terms and Conditions (“Terms”), along with any Order Forms, SOWs, or documents incorporated by reference (collectively, the “Agreement”) are entered into between Customer (as defined below) and BrainFreeze LLC (“BrainFreeze”), and is made effective the date Customer consents to these Terms electronically or signs an Order Form incorporating these Terms, whichever occurs earlier (“Effective Date”). The Agreement governs Customer’s use of the BrainFreeze Services. Both Customer and BrainFreeze may be referred to as “Party” or collectively, the “Parties”.
If an individual agreeing to the Agreement is doing so on behalf of an entity, the person must have the authority to bind the entity to the Agreement. Otherwise, you may not access the BrainFreeze Services unless for a free account.
1. Definitions.
“Agent” or “Assistant” means a combination of one or more Models with available data source(s) (Inputs, APIs, and/or any other data or technology in or submitted to the Software) to automate a machine learning system.
“Agent Execution” means an Input submitted to an Agent that generates an Output.
“API” means any integration, connector, or application programming interface allowing the exchange of data between the Software and Customer’s systems or Third-Party Services.
“BrainFreeze Services” means all services provided by BrainFreeze (by BrainFreeze or through its affiliates) to Customer, including Software, Documentation, Support Services, Professional Services, development tools, and any other services listed on an Order Form, SOW, or otherwise provided by BrainFreeze.
“BYOK” means any Customer provided API key (‘bring your own key’) for a Third-Party Services Model provider.
“Confidential Information” means any information marked or designated as confidential by a Party and any information that, under the circumstances of its disclosure or nature of the information, should reasonably be considered to be confidential, such as Customer Data, Documentation, pricing, software code, functionality, systems, and roadmaps, and any non-public technical, business, security, or financial information. Confidential Information may include a Party’s affiliate’s or Third-Party Service provider’s information.
“Customer” means: (i) in the case of an entity, the entity listed on an Order Form, or the entity being represented by its authorized personnel who accessed the BrainFreeze Services; or (ii) in the case of an educator using the BrainFreeze Services for their personal or classroom use, the person listed on the Order Form or that has accessed the BrainFreeze Services.
“Customer Data” means all Input, Output, data, metadata, student records, or content provided by or on behalf of Customer (including via a Customer Application or Agent by Users and Guests) to BrainFreeze or submitted to the Software. Customer Data may include personal information of teachers, staff, students, or parents if submitted by Customer.
“Customer Application” means any Customer application, product, or service created by or licensed to Customer that Customer uses or integrates with the Software via an BrainFreeze-provided or authorized API.
“Documentation” means any user guide and technical documentation relating to the BrainFreeze Services that may be provided by BrainFreeze from time to time.
“International DPA” means the Data Processing Addendum (currently found here), as may be amended by BrainFreeze from time to time.
“Guest” means any student, parent, legal guardian, or third party that uses an Agent directly via Spaces or via a Customer Application. Guests do not include Users.
“Model” means an artificial intelligence model made available by BrainFreeze or Customer (BYOK) in the Software.
“Order Form” means: (i) the signed ordering document between the Parties; or (ii) the selected BrainFreeze Services and billing cycle electronically accessed by Customer.
“Professional Services” means any configuration, implementation, or other services relating to the Software that are provided by or on behalf of BrainFreeze as referenced on an Order Form or SOW.
“Software” means the BrainFreeze software platform (including but not limited to APIs, Agents, Models, web and mobile applications, prompt libraries, AI Components, environment, and Updates) listed on an Order Form provided by BrainFreeze or through its affiliates.
“SOW” means a mutually agreed upon statement of work detailing the in-scope Professional Services.
“Spaces” means a virtual room where Customer and its Users may invite Guests via a QR code, link, or other electronic invitation to interact with Agent(s) on a mobile, tablet, or computer device.
“Support Services” means any applicable BrainFreeze support services listed on an Order Form as further detailed in any overview or documentation that may be provided by or on behalf of BrainFreeze from time to time.
“Subscription Term” means the term length listed on an Order Form.
“Third-Party Services” means a third-party’s products, services, websites, or materials that are selected to be used by Customer in or with the Software.
“Updates” means any addition or modification of functionality, features, patches, and fixes applied to the Software by BrainFreeze.
“Usage Data” means analytical data, including metadata, Customer Data, data relating to Customer’s use and configuration of the Software, its features, functionality, and performance that has been stripped of identifiable elements in accordance with applicable law so as to render such data de-identified so that it cannot be traced back to Customer, a User, Guest, or any individual.
“User” means all authorized Customer employees, teachers, school administrators, and agents that have a user account under Customer’s account.
2. Overview of BrainFreeze Services.
2.1. Overview. The BrainFreeze Services provide an AI orchestration platform designed for school systems and educators. Subject to the Agreement, Customer may, pursuant to the Documentation: (i) configureor import Agents, or use pre-configured Agents provided by BrainFreeze; (ii) use the Software or an Agent in Customer Applications; and (iii) allow Guests to interact with an Agent via Spaces.
2.2. Customer Accounts and Responsibilities. Customer is required to provide accurate and up to datenames and emails of individuals using the BrainFreeze Services to create User account(s). Only the assigned person may access their User account. Customer is responsible for: (i) the security and confidentiality of its User accounts and will immediately notify BrainFreeze of any unauthorized access; and (ii) all activity under its account (including Users and any individuals or entities using a Customer Application or an Agent) and Customer Data. Students do not need User accounts and may use the BrainFreeze Services via Spaces as enabled by Customer. BrainFreeze shall not be liable for any prohibited use of BrainFreeze Services by Customer.
2.3. Changes and Monitoring. BrainFreeze may provide Updates from time to time. If Customer is on a monthly Subscription Term, BrainFreeze may amend this Agreement by providing Customer with at least 30 days’ notice of a change. By accessing the BrainFreeze Services after a change is made to the Agreement, Customer agrees to the changes. If a Model is experiencing downtime or the Model’s API is temporarily overloaded, BrainFreeze reserves the right to replace the Model in use with a similar functioning Model. BrainFreeze may monitor Customer’s use of BrainFreeze Services to ensure its compliance with this Agreement.
2.4. No Training. BrainFreeze will not use Customer Data to train any Models.
3. Free Teacher Accounts. This Section 3 only applies if “Customer” is a teacher accessing the BrainFreeze Services with a free account in his or her individual capacity. If so, the below terms apply in addition to the rest of the Agreement. To the extent there are any conflicting terms in the Agreement in other sections, this Section shall control.
3.1. AI Use. As detailed in Section 15.4, the BrainFreeze Services use AI Components to provide Output. Customer agrees to ensure Output is reviewed appropriately before using or relying on it. AI Components are unpredictable and may produce inaccurate information.
3.2. Liability. BrainFreeze’s maximum liability arising under this Agreement for any cause of action shall be $100.
3.3. Binding Arbitration. The Terms include binding arbitration. Customer agrees to settle all disputes (with limited exceptions) between BrainFreeze and Customer through binding and final arbitration. If a dispute arises and BrainFreeze and Customer cannot resolve the dispute informally, Customer agrees to submit to mandatory arbitration administered by the American Arbitration Association and the International Centre for Dispute Resolution in accordance with its applicable Consumer Arbitration Rules applying. The arbitrator will be selected by BrainFreeze. Each Party shall be responsible for its own expenses. Any judgment on the award rendered by the arbitrator(s) may be entered into by the appropriate court in Fulton Country, Georgia, U.S.A. The arbitrator may not award any punitive, indirect, or consequential damages and will apply Georgia law to any dispute.
3.4. Waiver of Right to Jury Trial and Class Action. The Terms include a waiver of Customer’s right to a jury trial and to bring a class action against BrainFreeze for claims relating to the BrainFreeze Services. CUSTOMER AGREES TO WAIVE THE RIGHT TO A JURY TRIAL AND SUBMIT TO THE VENUE OF THE ABRITRATION TO BE IN FULTON COUNTY, GEORGIA, U.S.A. CUSTOMER FUTHER AGREES TO WAIVE ANY RIGHT TO PROCEED IN A REPRESENTATIVE OR CLASS ACTION MANNER, AND CLAIMS WILL BE HEARD ON AN INDIVIDUAL BASIS BY AN ARBITRATOR SELECTED BY BRAINFREEZE.
3.5. Functionality. Customer will only have access to the free version of the Software provided by BrainFreeze.
4. Access and Restrictions to BrainFreeze Services.
4.1. Grant. BrainFreeze grants Customer a limited, non-exclusive, non-transferrable, non-sublicensable, and revocable right to use the Software listed on an Order Form solely for Customer’s business, educational,and/or Customer Application purposes in accordance with the Documentation and Agreement. Customer is prohibited from using the Software for any purpose that is not expressly permitted under this Agreement.
4.2. Restrictions. Customer agrees not to, and will not permit others to: (i) copy, modify, create derivative works of, reverse engineer, decompile, disassemble, web scrape, or otherwise attempt to discover the source code or intellectual property underlying the BrainFreeze Services; (ii) exceed applicable usage limits (e.g., Agent Execution or document ingestion) set forth in the Documentation, as applicable; (iii) infringe, misappropriate, or otherwise violate BrainFreeze’s or any third party’s intellectual property rights or remove or alter any proprietary notices (e.g., copyrights) within the BrainFreeze Services; (iv) use the BrainFreeze Services in violation of the Agreement, Documentation, Acceptable Use Policy, or any applicable laws or regulations, including data privacy or export control laws; (v) knowingly transmit viruses, malware, or other harmful code to the BrainFreeze Services; (vi) scan, probe, or test the security or vulnerability of the BrainFreeze Services without prior written consent from BrainFreeze or publicly distribute internal benchmarking relating to the BrainFreeze Services; (vii) use the BrainFreeze Services to develop or support a competing product or service; (viii) reproduce, resell, market, or otherwise commercially distribute the BrainFreeze Services or provide Guests direct access to the Software; and(ix) submit personal health information to the BrainFreeze Services.
5. Professional Services.
5.1. Warranty. BrainFreeze will provide the Professional Services listed in an Order Form or SOW: (i) in a professional and workmanlike manner; and (ii) pursuant to the corresponding SOW.
5.2. Assumptions and Customer Obligations. Customer agrees that: (i) any proposed timelines for completion of work listed in an SOW are estimates; (ii) it must cooperate with BrainFreeze and provide reasonable access to its personnel, equipment, systems, and materials during normal business hours to enable the Professional Services; (iii) it is ultimately responsible for all testing, configuration, and workflow decisions; (iv) any change in scope in an SOW or out of scope work requested by Customer must be mutually agreed upon in writing; and (v) if applicable, all travel-related expenses will be pre-approved by Customer, provided Customer will fully reimburse BrainFreeze for approved expenses.
5.3. Access. Customer consents to an Airia Professional Service team member accessing Customer’s environment in the event a Third-Party Services request from Customer requires Customer account access. The Professional Service team member will only access Customer’s account to provide the corresponding services.
6. Applicable Law and Compliance. Each Party agrees to comply with their respective obligations under applicable law, including but not limited to the Family Educational Rights and Privacy Act (“FERPA”) and Children’s Online Privacy Protection Act (“COPPA”) if Customer is located in the United States. Nothing provided by BrainFreeze (including Output) shall be taken as professional advice (e.g., educational, legal, financial, medical, etc.).
7. Term. The Agreement commences on the Effective Date and will continue for the Subscription Term listed on an Order Form. If no Subscription Term is listed, the default term will be month-to-month. The Agreement will automatically renew for the same time period as the expiring Subscription Term on BrainFreeze’s then-current pricing. Customer may opt-out of automatically renewing: (i) if on a month-to-month term, by cancelling the BrainFreeze Services via the Software at any time; or (ii) if on a fixed Subscription Term, by providing BrainFreezewith at least 30 days’ prior written notice from the end of the current Subscription Term (email is sufficient).
8. Termination. Either Party shall have the right to terminate the Agreement if the other Party commits a material breach of the Agreement and fails to cure the breach within 30 days after notice of the breach was given. Upon termination or expiration of this Agreement, all rights granted by BrainFreeze will expire and Customer will destroy BrainFreeze’s Confidential Information within 30 days. BrainFreeze (including its subcontractors and affiliates) willsecurely destroy Customer Data within 30 days after expiration or termination of the Agreement. Additionally,within such 30-day period, Customer may export its Customer Data or upon the purchase of Professional Services, have BrainFreeze export or transfer its Customer Data on Customer’s behalf. Otherwise, BrainFreezewill securely destroy Customer Data promptly after receiving a written request from Customer.
9. Suspension. BrainFreeze may suspend Customer’s access to the BrainFreeze Services in whole or in part without incurring any liability upon Customer’s material breach of this Agreement or if the Minimum Balance is reached pursuant to the Payment for BrainFreeze Services Section.
10. Data Privacy and Security. BrainFreeze’s Privacy Policy is incorporated herein by reference. To the extent Customer Data contains personal information and: (i) Customer is located in the United States, the National Data Privacy Agreement (version 2) shall apply; or (ii) Customer is located outside of the United States, the International DPA shall apply. The applicable data processing agreement referenced in (i) or (ii) is incorporated herein by reference. BrainFreeze will adhere to the security requirements in both the Privacy Policy and applicable data processing agreement, and in any event will ensure appropriate administrative, physical, and technical safeguards are implemented to secure Customer Data from unauthorized access, disclosure, and use.
11.1. Fees. This Section shall only apply if Customer is on a paid account.
a. General Fees. All Software, Support Services, and Professional Services fees listed on an Order Form will be due and payable as stated in the Order Form. BrainFreeze only accepts electronic payments (ACH, wire, or Payment Services). If payment terms are not listed on the Order Form, the payment terms will be: (i) for month-to-month Subscription Terms, fees are due immediately and on a reoccurring monthly basis via the Payment Services; and (ii) for fixed Subscription Terms, fees are due up front and in advance within 30 days of receiving an invoice.
b. On-Going Fees. Fees that are not be listed on an Order Form (e.g., Model tokens, Third-Party Services, consumption-based fees) (“On-Going Fees”) are Customer’s responsibility and subject to the Third-Party Payment Services Section below. All On-Going Fees will be paid via the Payment Services.
11.2. Final Payment. All fees are non-cancelable and non-refundable except as otherwise stated in the Agreement. All fees paid and expenses reimbursed under this Agreement will be paid in the currency listed on the Order Form.
11.3. Changes. BrainFreeze’s pricing is listed here (“Pricing Page”). If Customer is on a monthly Subscription Term, BrainFreeze reserves the right to modify the pricing and payment terms at any time by updating the Pricing Page or otherwise providing notice to Customer. Any changes made will go into effect the next month.
11.4. Third-Party Payment Services. The Software uses a Third-Party Service provider for payment processing (“Payment Services”) of On-Going Fees and, where applicable, BrainFreeze Services fees. By using BrainFreeze Services, Customer accepts all applicable Payment Services’ terms and authorizations for credit card and bank account charges. BrainFreeze is not liable for any monetary transactions occurring through Customer’s use of the BrainFreeze Services or for issues relating to the Payment Services. Customer must maintain a $10.00 minimum balance in its BrainFreeze Payment Services account (“Minimum Balance”) for all On-Going Fees. Customer authorizes BrainFreeze to charge Customer’s Payment Services account for all fees, to maintain the Minimum Balance, and for any Payment Services processing fee allowed under applicable law, without any further notice or consent. Customer acknowledges On-Going Fees displayed in the BrainFreeze Services are estimates,and Customer is responsible for confirming the correct amounts with the Third-Party Services provider and for paying the actual amount owed.
11.5. Taxes. All fees listed on an Order Form are exclusive of taxes. BrainFreeze will charge Customer taxeslisted on an invoice as required by applicable law in connection with the Aria Services.
11.6. Extra Credit. BrainFreeze may, from time to time and in its sole discretion, apply credits to Customer’s Payment Services account for Customer to use toward On-Going Fees and/or make certain Models and Agents available to Customer at no charge.
12.1. Obligations. Each Party may disclose its Confidential Information (“Discloser”) to the other Party (“Recipient”). Recipient agrees to hold Discloser’s Confidential Information in confidence and not to copy, reproduce, publish, disclose, or transfer the Discloser’s Confidential Information to any third-party or utilize Confidential Information for any purpose other than as expressly contemplated in this Agreement, provided that a Recipient may disclose the Disclosing Party’s Confidential Information to the Recipient’s affiliates, agents, consultants, or suppliers (“Recipient Agent”): (i) as necessary to perform its rights and obligations under the Agreement; and (ii) so long as the Recipient Agent is bound to confidentiality obligations at least as stringent as the obligations herein. The Recipient is responsible for its Recipient Agent’s compliance with the confidentiality obligations in this Confidentiality Section. The obligations in this Confidentiality Section shall continue for the Subscription Term and for a period of two (2) years after the Agreement’s termination or expiration, provided the obligation for trade secrets will continue for as long as such information constitutes a trade secret under applicable law.
12.2. Exceptions. Confidential Information does not include information that: (i) is or becomes generally available to the public (except as a result of Recipient’s breach of this Agreement); (ii) is obtained by Recipient on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (iii) Recipient establishes by sufficient evidence that the Confidential Information was in its possession prior to the Discloser’s disclosure; or (iv) Recipient establishes by sufficient evidence that the Confidential Information was independently developed by Recipient without using any Discloser Confidential Information. The Recipient may disclose the Discloser’s Confidential Information if required by law, provided that the Recipient gives the Discloser prior written notice of the disclosure to the extent legally permissible.
13.1. BrainFreeze. BrainFreeze (or its licensors) retains exclusive ownership of all right, title, and interest in the BrainFreeze Services (including all intellectual property rights stemming from Professional or Support Services, even if paid for by Customer), Usage Data, and BrainFreeze Confidential Information, and all derivatives thereof. BrainFreeze does not perform any ‘work for hire’ services and does not grant Customer any other intellectual property rights other than those explicitly stated in the Agreement.
13.2. Customer. Customer (or its licensors) retains exclusive ownership of and direct control over all Customer Data, including queries, data, or prompts submitted to the Software by or on behalf of Customer (“Input”) and any Model-generated responses (“Output”). To the extent permitted by applicable law, Inputs and Outputs are deemed Customer Data (except to the extent Input or Output contains BrainFreeze’s intellectual property). Customer acknowledges that Input and Output may be similar to other Software users. In such cases, BrainFreeze does not grant any intellectual property rights for similar Input/Output, though Customer may pursue any intellectual property protections under applicable law. Customer grants BrainFreeze a limited, non-exclusive, worldwide right to use Customer Data solely for the purpose of providing the BrainFreeze Services as stated in the Agreement.
13.3. Feedback and Improvements. BrainFreeze may freely use and incorporate into the BrainFreezeServices any Customer suggestions, requests, feedback, or submissions to BrainFreeze, including an BrainFreeze community forum submission (e.g., prompt, Agent) that relate to the BrainFreeze Services (“Feedback”) without compensation to Customer. BrainFreeze may use Usage Data to operate, improve, and develop the BrainFreeze Services. BrainFreeze owns all right, title, and interest in Usage Data.
14. Liability. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY STATED BELOW WILL APPLY WHETHER AN ACTION OR CLAIM IS BASED ON TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), CONTRACT, STRICT LIABILITY, BREACH OF STATUTORY DUTY, OR ANY OTHER THEORY.
14.1. EXCLUSIONS. NEITHER PARTY, ITS AFFILIATES, LICENSORS, OR SUPPLIERS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR AGENTS WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE BRAINFREEZE SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF EITHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING.
14.2. MUTUAL CAP. NEITHER PARTY’S LIABILITY FOR ANY DAMAGES ARISING FROM THE AGREEMENT WILL EXCEED THE SOFTWARE SUBSCRIPTION FEES PAID OR PAYABLE TO BRAINFREEZE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY BEFORE THE EVENTS GIVING RISE TO SUCH CLAIM. A PARTY HAVING MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
14.3. EXCEPTIONS. THE LIMITATIONS AND EXCLUSIONS LISTED IN THIS LIABILITY SECTION SHALL NOT APPLY TO DAMAGES RELATING TO: (I) A PARTY’S FRAUD OR WILLFUL MISCONDUCT; (II) INDEMNIFICATION OBLIGATIONS; (III) CUSTOMER’S PAYMENT OBLIGATIONS; AND (IV) A PARTY’S VIOLATION OF LICENSE RESTRICTIONS OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
15. WARRANTIES AND DISCLAIMERS.
15.1. BrainFreeze Limited Warranty. BrainFreeze represents and warrants that the Software will perform substantially in accordance with the Documentation (“Performance Warranty”). The Performance Warranty will not apply to the extent a non-conformity is caused by Customer’s breach of the Agreement or Documentation.
15.2. Customer Limited Warranty. Customer represents and warrants that it has all necessary rights and permissions under applicable law to provide BrainFreeze with and for BrainFreeze to use the Customer Data and any Third-Party Services (where applicable) to provide the BrainFreeze Services.
15.3. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, BRAINFREEZE, ITS AFFILIATES, AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH REGARD TO BRAINFREEZESERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, BEING AVAILABLE WITHOUT INTERRUPTION OR THAT THE BRAINFREEZE SERVICES WILL WORK WITH ANY THIRD-PARTY SERVICES, WHICH SHALL BE PROVIDED AS-IS. BRAINFREEZE IS NOT RESPONSIBLE FOR ANY ERRORS, DATA LOSS, DATA CORRUPTION, OR OTHER LOSSES RELATING TO CUSTOMER’S USE OF ANY THIRD-PARTY SERVICES AND TOOLS MADE AVAILABLE BY BRAINFREEZE AND DISCLAIMS ALL LIABILITY TO CUSTOMER RELATING TO CLAIMS IN CONNECTION WITH CUSTOMER’S USE OF THIRD-PARTY SERVICES AND TOOLS.
15.4. AI DISCLAIMER. BRAINFREEZE SERVICES, INCLUDING ITS OR ITS THIRD-PARTY SERVICES PROVIDERS’ ARTIFICIAL INTELLIGENCE TECHNOLOGY, TOOLS, AND MODELS (“AI COMPONENTS”), ARE MADE AVAILABLE SOLELY FOR GENERAL INFORMATION PURPOSES. BRAINFREEZE MAKES NO GUARANTEES ABOUT THE ACCURACY OR QUALITY OF AI COMPONENTS OR OUTPUTS. THE USE OF AI COMPONENTS AND OUTPUTS ARE ENTIRELY AT CUSTOMER’S OWN RISK. CUSTOMER AGREES THAT: (I) THERE ARE INHERENT RISKS OF INACCURACY AND UNPREDICTABILITY WITH AI COMPONENTS; AND (II) BRAINFREEZE IS NOT RESPONSIBLE FOR ANY INACCURATE, UNPREDICTED, OR UNDESIRABLE RESULTS OR OUTPUTS FROM CUSTOMER’S USE OF THE AI COMPONENTS. BRAINFREEZE IS NOT LIABLE AND DISCLAIMS ALL LIABILITY FOR ANY CONSEQUENCES OR DAMAGES RELATING TO CUSTOMER, AND ANY OTHER THIRD-PARTY RELYING ON OR USING THE THIRD-PARTY SERVICES OR AI COMPONENTS IN THE SOFTWARE.
16. Indemnification.
16.1. Scope. The Parties will each indemnify, defend, and hold the other Party harmless (“Indemnifying Party”) against all alleged third party claims, damages (including attorney’s and filing fees), expenses, actions, or proceedings, arising out of or relating to:
a. Customer. If Customer is the Indemnifying Party, (i) Customer Data infringing a third-party’s intellectual property rights; (ii) BrainFreeze’s use of any Third-Party Services provided by or used on behalf of Customer; and (iii) Customer Application(s) (if any).
b. BrainFreeze. If BrainFreeze is the Indemnifying Party, the Documentation and Software provided by or on behalf of BrainFreeze infringing a third-party’s intellectual property rights.
16.2. Process. The indemnification obligations in this Indemnification Section are subject to the Indemnifying Party: (i) being promptly notified of the claim in writing by the other Party; (ii) the Indemnifying Party having sole control of the defense and any settlement negotiations with respect to the claim, provided it may not admit any fault or liability on behalf of the non-indemnifying Party; and (iii) being provided the assistance, authority, and any reasonably requested information from the other Party. The non-Indemnifying Party may not settle any claim stemming from this Indemnification Section without the Indemnifying Party’s prior written consent. This Indemnification Section states the Parties’ sole and exclusive remedy under the Agreement for any third-party claim covered by this Section.
16.3. Limitations. BrainFreeze will not have any obligation under this Indemnification Section to the extent that a claim is due to: (i) use of the Software in breach of the Agreement or Documentation; (ii) the combination, operation, or use of the Software with: (a) Third-Party Services; or (b) Customer Data orCustomer Applications to the extent that such combination, operation, or use of these caused the underlying infringement; or (iii) changes to the Software made by a party other than BrainFreeze.
17. Third-Party Services. BrainFreeze enables Customer to choose what Models and tools it uses based on what is made available in the BrainFreeze Services. While BrainFreeze reviews its Third-Party Services providers terms, including confirming that their security, data privacy, and related obligations are appropriate, Customer isresponsible for its use of Third-Party Services (including use stemming from Customer Applications, Agents, and Guests), including its compliance with the applicable terms and conditions of Third-Party Services providers. If Customer elects to use the optional Third-Party Services, Customer consents to the transmission and exchange of Customer Data with the Third-Party Services. BrainFreeze accepts no responsibility or liability for Customer’s misuse of any Third-Party Services.
17.1. Third-Party Services include Wolfrom Alpha Pro and its Terms of Use. Results and information from this Third-Party Services provider’s site are not a certified or definitive source of information that can be relied on for legal, financial, medical, life-safety or any other critical purposes.
18. Trial Access. If offered by BrainFreeze, Customer may access and use the Software on a trial basis. Customer agrees that it is responsible for all On-Going Fees during its trial access. Notwithstanding anything to the contrary in the Agreement, if Customer is granted trial access, the terms in this Trial Access Section supersede any conflicting terms in the Agreement. The trial’s term will be as stated in the applicable Order Form or as otherwise allowed by BrainFreeze and will expire the sooner of: (i) the expiration of the period on the Order Form; (ii) BrainFreeze ending the trial in its sole discretion; or (iii) Customer purchases a subscription to the BrainFreeze Services (“Trial Term”). Upon the Trial Term’s expiration, Customer’s right to use the BrainFreezeServices through the trial access immediately expires. CUSTOMER AGREES THAT THE BRAINFREEZESERVICES ARE PROVIDED “AS IS” AND MAY CONTAIN FORWARD LOOKING CODE. BRAINFREEZEDISCLAIMS ALL WARRANTIES AND ITS INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO FREE TRIAL USE. BRAINFREEZE DISCLAIMS ALL LIABILITY RELATING TO ANY FREE TRIAL USE, AND IF A DISCLAIMER OF LIABILITY IS NOT ALLOWED UNDER APPLICABLE LAW, BRAINFREEZE’S LIABILITY SHALL NOT EXCEED $100.00.
19. Marketing. Customer grants BrainFreeze a limited right to use Customer’s trademarks, logos, and related materials in BrainFreeze’s sales and marketing materials and otherwise reference Customer’s use of the BrainFreeze Services in marketing publications.
20. General Terms.
20.1. Relationship. This Agreement does not create any partnership, joint venture, or agency relationship between the Parties.
20.2. Notice. Any notices related to this Agreement must be in writing. Notices to Customer will be sent to the administrative User’s email address associated with Customer’s account or to Customer’s contact information listed on the Order Form. Notices to BrainFreeze shall be sent to [email protected]and the BrainFreeze address listed on the Order Form.
20.3. DMCA Notice. Pursuant to 17 U.S.C. § 512 (Digital Millenium Copyright Act of 1998, “DMCA”), BrainFreeze has implemented takedown procedures for infringing materials. If Customer has a good faith belief that copyrighted materials that Customer has authority to act on are being used in the BrainFreeze Services in an infringing manner, Customer may submit a notice of infringing material to BrainFreeze by emailing [email protected]. BrainFreeze will promptly review any submissions and if all requirements in DMCA are met, BrainFreeze will act in accordance with its obligations in DMCA, and where necessary, remove the infringing content.
20.4. Governing Law. This Agreement shall be interpreted and governed by the laws of the State of Georgia without regard to its conflict of laws principles. For any disputes arising out of this Agreement, the Parties consent to the personal and exclusive jurisdiction of, and venue in, the competent state and federal courts within Fulton County, Georgia.
20.5. Assignment. Customer may not assign its rights and duties under this Agreement without the prior written consent of BrainFreeze, except that Customer may assign this Agreement in whole as part of a merger, or sale of substantially all its assets. BrainFreeze may freely assign this Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
20.6. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the BrainFreeze Services and supersedes all other agreements and understandings, whether oral or written, including any purchase order terms or other hyperlinked terms not referenced in this Agreement. This Agreement may only be modified by the Parties’ mutual written agreement. Any Order Form or the Agreement may be executed in any number of counterparts, with all signed documents together constituting the same document.
20.7. Waiver and Enforceability. A failure to enforce any provision of this Agreement shall not constitute a waiver of any future enforcement of that or any other provision of this Agreement. If any language in this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the at-issue language will be modified to the least extent necessary to make such language valid and enforceable.
20.8. Force Majeure. Neither Party shall be liable for delays or failures in performing any of its obligations hereunder (except for Customer’s payment obligations) due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, terrorism, or communication or utility failures.
20.9. Order of Precedence. In the event of a conflict between the Agreement and any Order Form or SOW, the Order Form or SOW will control so long as the specific section being modified in the Agreement is referenced on the Order Form or SOW.
20.10. Survival. Termination or expiration of this Agreement, or any Order Form or SOW will not affect the provisions regarding Confidential Information, payments of amounts due, indemnification obligations, limiting or disclaiming each Party’s liability, or any other provision reasonably intended to survive the Agreement’s termination or expiration.