Last update 28 April 2023.
Brainboard Inc. (“Brainboard” or “us”, “our”, “we”) provides an application based on proprietary technology and algorithms to manage environments on cloud infrastructure providers, such as AWS, Azure, and Google Cloud (the “App”) as well as a website located at https://www.brainboard.co (the “Site”). These Terms of Service (“Terms”) govern your access and use of the App and/or Site. “You” means any entity that uses the App to manage environments on the cloud, including the personnel of such entity, (together, the “Customer”) as well as any visitor to the Site.
Subject to the terms and conditions herein, Brainboard grants you a limited, non-exclusive, non-transferable and non-sublicenseable license to access the Site and/or use the App during the Term of these Terms in order to manage environments in your cloud. You may use the App and/or Site for internal business purposes only. Brainboard reserves the right to modify the App and/or Site at any time in its sole discretion. The App is made available over the Internet, and you are not entitled to any source code or executables in respect of the App.
You may not, nor allow third parties to: (i) use the App and/or Site as a part of a timeshare or service bureau arrangement; (ii) copy, modify, create derivative works of, adapt, translate, reverse engineer, decompile, or disassemble any portion of the App and/or Site in any way; (iii) except as permitted hereunder, distribute the App and/or Site to any third party or provide any third party with access to the App and/or Site; (iv) interfere with or disrupt the operation of the App and/or Site, or the servers or networks that host the App and/or Site, (v) interfere with or circumvent any security or access control mechanism of the App and/or Site, (vi) express or imply that Brainboard endorses you or your business or present false information about the App and/or Site; (vii) use the App and/or Site for any illegal or unauthorized purpose; (viii) remove, change or modify any trademarks from or attach any additional trademarks to the App and/or Site; or (ix) visit the App and/or Site through unauthorized means, including without limitation any data mining, robots/bots, or similar data gathering and extraction tools to extract for re-utilization of any parts of the App and/or Site. You are responsible for ensuring that all use of the App and/or Site complies with applicable law (including any law concerning the collection, use and storage of information).
In order to obtain access to the App, Customer’s personnel must login through one of the options provided, such as Google, Microsoft, AWS, Github or Gitlab and create an account which other personnel of the Customers can access. Brainboard reserves the right to refuse to allow you to open an account for any reason in its sole discretion and/or to change the method of logging in. You and your personnel should keep the information of your account private and you should not reveal the password to it to any third party. Your account is at risk if you let someone use it inappropriately. You agree to immediately notify Brainboard of any unauthorized use of your account or password. You are fully and solely responsible for the security of your computer system and all activity on its account, even if such activities were not committed by you.
Brainboard owns all right, title and interest in the App and/or Site and all software related to the provision of the App and/or Site and all enhancements, derivatives, bug fixes or improvements to the foregoing and all intellectual property rights in the foregoing. You have no right to use the App and/or Site except as expressly set forth herein. Should you provide Brainboard with any comments or suggestions for the modification, correction, improvement or enhancement of the App and/or Site then you also grant Brainboard the right to use such feedback without restriction and without obligation to you.
For certain versions and/or features of the App, Customer will be required to make payment to Brainboard of the amounts set forth on a separate quotation or price list provided by Brainboard, which may be available at an Internet location provided to you by Brainboard (a “Quotation”). Customer must make payment of such amounts according to the payment terms set forth in the Quotation. Payment of such amounts must be without deduction or withholding including in respect of taxes or other government charges. Late payments shall be subject to a late fee of 18% per annum or, if lower, the highest amount permitted by applicable law. In the event of any conflict between these Terms and the express terms of any Quotation, the express terms of such Quotation shall govern.
Customer must make reasonable commercial efforts (including imposing appropriate contractual restrictions on any of Customer’s personnel that provide content or material via the App) to ensure that the content that is accessible via the App does not contain (a) material that infringes the intellectual property rights, moral rights, or privacy rights of any third party, (b) material that could reasonably be determined to be racially or ethnically insensitive, defamatory, libelous, harassing or threatening; (c) pornographic or obscene material, or material which may be harmful to a minor; (d) any virus, worm, Trojan horse, or other malicious, harmful or disruptive component; or (e) anything that encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or regulation or is otherwise inappropriate.
Customer hereby acknowledges and agrees that Brainboard merely plays a technical role in managing Customer’s cloud service, and that Customer shall have sole responsibility and liability for any of the content stored on the cloud.
In order to provide the App and associated analytics, Brainboard collects certain data regarding Customer’s systems, code and users, including data uploaded to the cloud and regarding how the systems and cloud are used, planned, accessed and developed by Customer’s employees and service providers (the “Customer Data”). All Customer Data is Customer’s confidential information and, except as set forth in these Terms, Brainboard shall not disclose such Customer Data to third parties or use such Customer Data except to provide services to Customer. Certain certified Brainboard analysts may have access to Customer Data in order to understand Customer’s needs, make recommendations and provide support. Customer represents and warrants that Customer have the right to provide Brainboard with access to all Customer Data, including without limitation the use of your systems and code by its employees and service providers, and including all account and login information that Customer may provide to Brainboard. Customer will provide Customer’s employees and service providers with all notices required under law regarding the use of the App. Brainboard analyzes all Customer Data in order to provide Customer with the App, including for the purposes of generating analysis and reports for Customer. In addition, Brainboard may use Customer Data for the purpose of generating aggregate anonymous data, such as for the purpose of providing benchmarks. Brainboard may also use aggregate, anonymous data for the purpose of improving the App, including the algorithms and models used by the App. Brainboard will implement reasonable security measures appropriate to the nature of the Customer Data including without limitation, technical, physical, administrative and organizational controls, and will maintain the confidentiality, security and integrity of such Customer Data. Brainboard may disclose Customer Data to the extent required by applicable law or to cooperate with a law enforcement investigation or to enforce its rights under this Agreement. Brainboard may transfer all Customer Data to jurisdictions other than Customer’s jurisdiction.
You shall indemnify and hold harmless and, at Brainboard’s option, defend Brainboard, and its officers, directors, employees, agents, members and licensors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees and court costs) arising from or related to: (i) your breach of any provision of these Terms, (ii) your breach of any laws including, without limitation privacy laws; or (iii) any claim in respect of the content of any material provided by you or your personnel through the App. Brainboard may participate in the defense of any such claim.
Customer warrants and represents that: (a) Customer is duly organized, validly existing and in good standing under the laws of the State of Customer’s organization or incorporation, and these Terms has been duly authorized by all necessary corporate or other entity action; (b) Customer has the right, power and authority to enter into and fully perform these Terms and grant all of the rights granted by Customer hereunder; and, (c) the execution of these Terms by Customer and Customer’s performance of the obligations hereunder does not and will not violate any agreement by which Customer is bound or the rights of any third party.
To the maximum extent permitted by applicable law, Brainboard does not provide any representations or warranties with respect to the services, App and/or Site and disclaims any implied or statutory warranties with respect to the foregoing, including without limitation any implied or statutory warranties of merchantability, fitness for a particular purpose or non-infringement. Brainboard makes no warranty regarding the availability of the Service, App and/or Site, and does not warrant that your use of the Service, App and/or Site will be continuous or non-interrupted. Brainboard does not guarantee the App, Site and/or services will be operable at all times or during any down time (1) caused by outages to any public internet backbones, networks or servers, (2) caused by any failures of your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond Brainboard-’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in internet services to an area where Brainboard’s or your servers are located.
To the maximum extent permitted by applicable law, Brainboard shall have no liability for consequential, special or incidental damages or losses caused by your use of the App, site, or the services, including with respect to lost profits, lost opportunities or lost data. The aggregate liability of Brainboard for any claim related to or arising from your use of the App, site, or services shall be limited to the aggregate amount received from you with respect to your use of the App, site or services within the twelve (12) months preceding the claim.
The term of this agreement shall commence on the date you accept these Terms and shall continue indefinitely unless otherwise terminated in accordance with these Terms (the “Term”). Brainboard may terminate these Terms and all rights granted hereunder without notice. Immediately after termination, you will stop use of the App and/or Site.
These Terms are the entire agreement between you and Brainboard relating to the subject herein, and supersede any and all prior or contemporaneous written or oral agreements or understandings between you and Brainboard. No waiver of these Terms shall be effective unless agreed between the parties in writing. If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision shall be interpreted as necessary to give maximum effect to its provisions as possible under applicable law, and any such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of these Terms. You may not assign any of your rights or obligations under these Terms without the prior written consent of Brainboard. These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, or agency, relationship between the parties hereto. Any claim relating to these Terms will be governed by and interpreted in accordance with the laws of California (US), without reference to its conflict-of-laws principles. Any dispute arising out of or related to the Terms will be brought in, and you hereby consent to exclusive jurisdiction and venue in, the competent courts in California (US).