BRAINWORKS TERMS OF SERVICE AND SAAS SUBSCRIPTION TERMS

Last Updated: June 19, 2025

These Brainworks Terms of Service and SaaS Subscription Terms (this “Agreement”), effective as of the date of initiation of the free trial period or purchase of a subscription (the “Effective Date”) create a legal agreement between Brainworks Software, LLC (“Brainworks”) and the access or use of the website located at www.brainworks.com or its sub-domains (the “Site”) and/or the user of or subscriber to the Software (including the Site, as further defined below)(together with its employees, contractors, and agents, “Customer”). This Agreement governs Customer’s access to and use of the Software (including the Site) and by using or accessing the Software, Customer agrees to be bound by this Agreement.

By accessing, browsing, submitting any information, to or through, or otherwise in any manner using the Software, and linking to this Agreement or by accessing, submitting any information to or through, or otherwise in any manner using any service offered on or though the Software, You acknowledge that you have read and understand, and agree to be bound by and to comply with all of this Agreement. If you do not agree to all of the terms of this Agreement, without any modification by you, you are not authorized to and must not access or use this Software.

Any person who visits, uses, or accesses this Software is referred to as a Customer. Customers are also referred to in this Agreement as “You”, “you”, “Your”, or “your.” In the event that the individual accessing the Software is accessing the Software on behalf of a legal entity, such legal entity shall be the Customer hereunder, and, where Customer is not a natural person, the natural person accessing the Software on behalf of Customer hereby represents and warrants in his or her individual capacity that he or she has the authority to bind such legal entity in contract to this Agreement as Customer. Customer and Brainworks are individually hereinafter referred to as a “Party” and collectively as the “Parties”.

1. SCOPE OF AGREEMENT

1.1 Software. Brainworks’s proprietary XPHuddle software solution (together with the Site and services, features, and information made available on or through such Site or software solution, and together with any documentation relating thereto, the “Software”) will be hosted and distributed online by Brainworks and made available to Customer as a software as a service, which consists of a task management system specifically tailored for creative workflows in the media advertising space. Brainworks will be responsible for hosting of the Software. Customer will be responsible for providing the computer hardware, web browser (including installing any required browser extension), or mobile devices necessary to interface with the Software. This Agreement sets forth the terms and conditions that will govern Brainworks’s grant of access to the Software.

1.2 Rights to Use. Subject to the terms and conditions of this Agreement, Brainworks hereby grants to Customer’s authorized users a non-exclusive, non-sublicensable, non-transferable, limited, revocable license to access and use the Site and/or, in the case of a valid subscription or Evaluation Period, to access and use the Software corresponding to the Software subscription purchased by Customer solely during the Term.

1.3 Ownership and Reservation of Rights. Nothing in this Agreement shall constitute a transfer of any proprietary right by Brainworks to Customer. The Software may be protected by patent, copyright, trade secret, and other intellectual property laws (“Intellectual Property Rights”). As between the Parties, Brainworks owns and retains all right, title, and interest in and to the Intellectual Property Rights in and to the Software (including any data and/or analytics made available through the Software) and any enhancements, modifications, or derivative works thereof. As between the Parties, (i) each Party retains ownership in and to its Confidential Information (as hereinafter defined) and (ii) Brainworks exclusively owns all right, title, and interest in and to the Software and any derivative works and work product conceived, originated, or prepared in connection with the Software, and all Intellectual Property Rights in any of the foregoing. All rights not specifically granted to Customer in this Agreement are retained by Brainworks. Customer acknowledges the proprietary rights of Brainworks and its licensors in the Software and that Brainworks retains all right, title and interest in and to the Software, including all Intellectual Property Rights therein.

1.4 Third-Party Services. The Software may link, interface, and integrate with third-party software applications, services, and websites that are not operated or controlled by Brainworks (each, a “Third-Party Service”). All such Third-Party Services shall remain the property of their third-party providers. Customer hereby acknowledges and agrees that Brainworks is not responsible for the content or practices of the Third-Party Services. Customer is solely responsible for any required third-party account setup or fees levied by any such Third-Party Services for using their services. It shall be Customer’s responsibility to, and Customer shall, ensure that the use of the Software in connection with any such Third-Party Services complies with any applicable terms of service. Any links to or content from Third-Party Services in the Software are provided for Customer’s convenience only. Customer’s reliance on any Third-Party Service is at Customer’s own risk; Brainworks does not endorse or warranty any Third-Party Service, including any Third-Party Service linked to, or interfaced or integrated with, the Software. Brainworks reserves the right to update or remove any functionality available through the Software at any time for any reason. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ITS RELATIONSHIP WITH ANY THIRD-PARTY SERVICE, INCLUDING WITHOUT LIMITATION CUSTOMER’S INTERACTION WITH ANY SUCH THIRD-PARTY SERVICE THROUGH THE SOFTWARE. BRAINWORKS SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY INTERACTION WITH ANY THIRD-PARTY SERVICE, WHETHER THROUGH THE SOFTWARE OR OTHERWISE, BY OR ON BEHALF OF THE CUSTOMER. BRAINWORKS SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY PAYMENT OBLIGATIONS THAT ARISE AS A RESULT OF ANY SUCH INTERACTION, ANY LIABILITY THAT ARISES AS A RESULT OF ANY SUCH INTERACTION (INCLUDING WITHOUT LIMITATION UNDER ANY APPLICABLE TERMS OF SERVICE), OR ANY RELATIONSHIP THAT EXISTS OR COMES TO EXIST BETWEEN CUSTOMER AND ANY THIRD-PARTY SERVICE PROVIDER.

1.5 Feedback. To the extent Customer or any of employees or contractors sends or transmits (or has, prior to the Effective Date, sent or transmitted) any communications or materials to Brainworks by mail, email, telephone, or otherwise, suggesting or recommending additions or changes to any Brainworks materials, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Brainworks is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Brainworks on Customer’s behalf, and on behalf of any of its employees, contractors and/or agents, all right, title, and interest in, and Brainworks is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in or embodied by the Feedback, for any purpose whatsoever, although Brainworks is not required to use any Feedback. Customer represents that it has not, and will not, knowingly provide Feedback that is subject to any third-party Intellectual Property Rights.

1.6 Changes to Software. Brainworks reserves the right at any time to alter or discontinue any or all features, functionality, license terms, and other characteristics of the Software; provided, however, that in the event that any such alterations materially limit the features or functionality of the Software, Brainworks shall use commercially reasonable efforts to provide Customer with advanced notice thereof. Any subsequent upgrade, enhancement or other change to the Software shall be owned by Brainworks and subject to the terms of this Agreement.

1.7 Changes to Agreement. Brainworks reserves the right, at its sole discretion, to modify this Agreement at any time and without prior notice, and without penalty. If we modify this Agreement – which may include updating, revising, amending, supplementing, restating, or terminating this Agreement – we will either post the modification on the Software (including through the Site) or otherwise provide you with notice of the modification. Please also refer to the “Last Updated” date indicated at the beginning of this Agreement. Through continued access or use of the Software (including the Site) after Brainworks has posted a modification thereon or has provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Agreements is not acceptable to you, you must discontinue use of the Software (including the Site, if applicable).

1.8 Communications. Brainworks may from time to time and as needed communicate with you by various means, including via e-mail, text message, telephone calls, and push notifications to the telephone number you provide to us, in relation to your use of the Software and our services and offerings, or otherwise. Please note communications from us may include communications generated by automatic telephone dialing systems or other methods and systems, which will deliver prerecorded messages sent by or on behalf of Brainworks, its affiliated companies, or other Users, including but not limited to operational communications concerning the Platform, use of User Features or other Services, and updates concerning new and existing features on the Brainworks Platform. In other instances, we will seek your consent to receive our communications before contacting you by asking you to “opt-in” to such communications. This may include interaction with certain features made available through the Software such as our “Contact” features, receiving our newsletter, promotions and promotional materials provided by Brainworks or third parties, and updates and news concerning Brainworks. Where we have already received your opt-in consent to receive certain communications, IF YOU WISH TO OPT-OUT OF PROMOTIONAL EMAILS, TEXT MESSAGES, OR OTHER SUCH “OPT-IN” COMMUNICATIONS, YOU MAY OPT-OUT BY FOLLOWING THE UNSUBSCRIBE OPTIONS THAT ARE PROVIDED TO YOU ON THE PLATFORM OR VIA THE COMMUNICATION, IF APPLICABLE (e.g., the “unsubscribe” button in our promotional emails or a “STOP” message for text messaging). Standard text messaging charges applied by your telephone phone carrier will apply to text messages we send.

1.9 Eligibility. Any access to or use of any of the Software by anyone under 18 is prohibited. By accessing or utilizing any User Features on or through the Platform you represent and warrant that you are 18 years of age or older.

2. CONFIDENTIAL INFORMATION

2.1 Confidentiality. Customer acknowledges and agrees that the Software (together with the design, features, functions, and architecture thereof and any information or data made available thereon, collectively “Confidential Information”) is proprietary, confidential, and competitively sensitive. Customer shall: (i) use and reproduce the Confidential Information only to the extent expressly permitted in this Agreement, (ii) restrict disclosure of Confidential Information to its representatives with a need to know the Confidential Information to enable Customer to perform its obligations and exercise its rights under this Agreement, provided that such representatives are bound by confidentiality obligations broad enough to encompass Confidential Information that are at least as protective as those contained in this Agreement, and (iii) use its best efforts to protect the Confidential Information and to prevent unauthorized disclosure of, or access to, such Confidential Information. Notwithstanding the foregoing, Customer may use the Software (including screenshots therefrom) in connection with public presentations and lectures, provided that Customer appropriately attributes the Software to Brainworks. Customer may disclose Confidential Information to the extent required by a legally binding judicial or other governmental order, provided that, Customer provides Brainworks with prompt notice of the same and cooperates with Brainworks in connection with any actions taken by Brainworks to protect such Confidential Information, including without limitation the seeking of an appropriate protective order or other remedy.

2.2 Analytics. Brainworks may collect and analyze data, statistics or other information obtained through the provision, use and performance of various aspects of the Software (collectively, “Analytics”) and aggregate such Analytics with data, statistics or other information obtained from other sources, and may use such Analytics for lawful business purposes, including improvement of the Software. Brainworks owns all right, title, and interest in and to all Analytics and no compensation will be paid by Brainworks to any person with respect to its use of Analytics.

2.3 Customer Data. Brainworks may Process certain data (whether through the Software or otherwise) made available to Brainworks by or on behalf of Customer (“Customer Data”). Customer shall be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other access protocols required in order to access the Software. Customer will be solely responsible for the accuracy and completeness of the Customer Data. Brainworks shall have no obligation to maintain any Customer Data obtained in the course of providing the Software and hereby disclaims any and all responsibility or liability in connection with Brainworks’s Processing of Customer Data. Customer hereby acknowledges and agrees that Brainworks may Process Customer Data in order to provide the Software and for Brainworks’s lawful business purposes. Customer represents, warrants, and covenants that: (i) it has (and will have) Processed, collected, and disclosed all Customer Data in compliance with applicable Law and provided any notice and obtained all consents and rights required by applicable Law to enable Brainworks to lawfully Process Customer Data as permitted by this Agreement; (ii) it has (and will continue to have) full right and authority to make the Customer Data available to Brainworks under this Agreement; (iii) Customer Data contains no Prohibited Data; and (iv) Brainworks’s Processing of the Customer Data in accordance with this Agreement or Customer’s instructions does and will not infringe upon or violate any applicable Law or any rights of any third party. “Process” for purposes of this Section 2.3 (including any grammatically inflected forms thereof) means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, including without limitation collection, recording, organization, structuring, storage, adaptation or alteration, access, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction. “Prohibited Data” means (A) any information that that is subject to or regulated by: (i) the Health Insurance Portability and Accountability Act of 1996 (as amended, and together with any regulations promulgated thereunder, including without limitation the Health Insurance Reform: Security Standards (Security Rule)); (ii) the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009 (as amended); (iii) the General Data Protection Regulation 2016/679; (iv) Gramm-Leach-Bliley Act, also known as the Financial Services Modernization Act of 1999 (together with any regulations promulgated thereunder); (v) 201 CMR 17.00 et seq.; or (vi) any other law (including any data protection or breach notification law); or (B) any information of Customer that is proprietary, confidential, or competitively sensitive. For the avoidance of doubt, Customer acknowledges that there is no obligation of confidentiality whatsoever with respect to Customer Data and Brainworks shall have no responsibility or liability in connection with any use or disclosure of such Customer Data.

2.4 Defend Trade Secrets Act of 2016 Notice. Notwithstanding any provision in this Agreement, an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, provided that such filing is made under seal. Further, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, provided that the individual (A) files any document containing the trade secret under seal and (B) does not disclose the trade secret, except pursuant to court order.

3. DATA PRIVACY; PERSONAL INFORMATION PROCESSING.

3.1 Definitions. For purposes of this Section 3:

3.1.1 “Personal Information” means any information Brainworks processes for the Customer that (a) identifies or relates to an individual (the “Data Subject”) who can be identified directly or indirectly from that data alone or in combination with other information in Brainwork’s possession or control or that Brainworks is likely to have access to, or (b) the relevant Privacy and Data Protection Requirements otherwise define as protected personal information.

3.1.2 “Privacy and Data Protection Requirements” means all applicable Laws relating to the processing, protection, or privacy of the Personal Information, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction.

3.1.3 “Processing, processes, or process” means any activity that involves the use of Personal Information or that the relevant Privacy and Data Protection Requirements may otherwise include in the definition of processing, processes, or process. It includes obtaining, recording, or holding the data, or carrying out any operation or set of operations on the data including, but not limited to, organizing, amending, retrieving, using, disclosing, erasing, or destroying it. Processing also includes transferring Personal Information to third parties.

3.2 Customer retains control of the Personal Information and remains responsible for its compliance obligations under the applicable Privacy and Data Protection Requirements, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to Brainworks. Customer agrees to be bound by and otherwise comply with all written privacy agreements implemented by Brainworks on behalf of Customer, including this Section 3 and such other written privacy agreements as may be implemented by Brainworks from time to time (collectively the “Privacy Policies”). As between Customer and Brainworks, Customer agrees and acknowledges that it is a Data Controller, and that Brainworks is a Data Processor within the meaning of the General Data Protection Regulation (Regulation (EU) 2016/679).

3.3 Brainworks will only collect Personal Information for the Customer using the Privacy Policies described in Section 3.2 informing each Data Subject of Customer’s identity, the purpose or purposes for which their Personal Information will be processed, and any other information that is required by applicable Privacy and Data Protection Requirements. Customer will not modify or alter the Privacy Policies in any way without Brainworks’s prior written consent.

3.4 Brainworks will only process, retain, use, or disclose the Personal Information to the extent, and in such a manner, as is necessary to carry out the Services. Brainworks will not process, retain, use, or disclose the Personal Information for any other purpose, outside of the parties’ business relationship, or in a way that does not comply with this Agreement. Brainworks will maintain the confidentiality of all Personal Information and will not disclose it to third parties unless the Customer or this Agreement specifically authorizes the disclosure, or as required by Law. If a Law requires Brainworks to process or disclose Personal Information, Brainworks will first inform the Customer of the legal requirement and give the Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice.

3.5 Customer acknowledges that Brainworks is under no duty to investigate the completeness, accuracy, or sufficiency of any specific Customer instructions or the Personal Information other than as required under the Privacy and Data Protection Requirements. Customer agrees to comply will all applicable Privacy and Data Protection Requirements applicable to Customer.

4. TERM AND TERMINATION

4.1 Term. Unless otherwise set forth in an applicable Order Form, the initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue until such time, if ever, Customer no longer has an active Software subscription attributable to Customer’s account (the “Term”).

4.2 Termination. Customer may terminate its account at any time by following the termination instructions set forth in Customer’s Software account (provided that, in the event Customer seeks to terminate any pre-paid Software subscription, such termination shall only become effective from and after the expiration date of Customer’s then-current Software subscription). Brainworks may, in its sole discretion, for any reason or no reason, terminate this Agreement or any account (or any part thereof, including any Software subscription attributable to such account). To the extent permitted by applicable Law, with respect to any paid Software subscription, Customer agrees and acknowledges that, in the event Brainworks terminates this Agreement under this Section 4.2, notwithstanding Section 4.3, Customer shall not be entitled to any refund for any amounts which were pre-paid on behalf of Customer’s account prior to any termination of Customer’s account. By accessing Customer’s Software account, Customer acknowledges that, although under certain circumstances, users located in the European Economic Area may have a right to cancel prepaid account subscriptions within 14 days of signing up for, upgrading to, or renewing an account, PERFORMANCE OF THIS AGREEMENT HAS BEGUN UPON ACCESSING THE SOFTWARE ACCOUNT AND CUSTOMER THEREBY LOSES ANY RIGHT OF WITHDRAWAL CUSTOMER MAY HAVE UNDER APPLICABLE LAW, INCLUDING APPLICABLE EUROPEAN UNION LAW, IN RESPECT OF THE PURCHASE OF ANY DIGITAL CONTENT HEREUNDER, AND CUSTOMER THEREBY WAIVES ANY RIGHT CUSTOMER MAY HAVE TO A REFUND OF ANY AMOUNTS WHICH WERE PRE-PAID ON BEHALF OF CUSTOMER’S ACCOUNT PRIOR TO ANY TERMINATION OF CUSTOMER’S ACCOUNT.

4.3 Effect of Termination. Immediately upon termination or expiration of this Agreement, Brainworks’s obligation to provide the Software will immediately cease, any and all licenses granted by Brainworks hereunder will immediately terminate, and all unpaid fees and other amounts due from Customer for Software previously provided by Brainworks will immediately become due and payable. Customer shall, immediately upon termination or expiration of this Agreement, return or destroy, at the option of Brainworks, all copies of such Confidential Information that are in Customer’s possession or control.

4.4 Suspension of Software. Notwithstanding any provision herein to the contrary, Brainworks may suspend Customer’s access (in whole or in part) to the Software in the event  (i) of any activity by Customer, if such activity has, or in Brainworks’s reasonable assessment is likely to have, an adverse effect on the Software; (ii) Customer or any of its authorized users breach any term of this Agreement; or (iii) Customer fails to pay an undisputed amount due under this Agreement.

4.5 Evaluation Period. Customer can evaluate if the Software meets the customer’s needs and expectations.  To facilitate the evaluation of the software, the following will apply to this agreement:  (i) Free Trial Period. Customer is entitled to a 14-day free trial of the Software for the purposes of deciding whether the Software meet its requirements (“Evaluation Period”); (ii) Access to Free Trial. During the Evaluation Period, Brainworks grants to the Customer a non-exclusive, non- transferable right to permit the authorized users to access and use the Software during the Evaluation Period only in accordance with this Agreement for the sole purpose of deciding whether or not the Software meet the Customer’s requirements; (iii) End of the Free Trial. If the Customer decides that the Software does not meet its requirements, or Customer otherwise does not wish to enter into a paid subscription, then any rights granted to the Customer to use the Software under this Agreement or otherwise shall immediately cease.  Although Customer will no longer be able to utilize the Software, Customer will be afforded access and the capability to recover its data for a period of up to 30 days from the start date of the Evaluation Period.  Upon expiration of the 30 days, Customer will no longer be afforded access to its data and said data shall be permanently deleted. If, after the Evaluation, Customer wishes to continue to use the Software, Customer can purchase a subscription pursuant to this Agreement and this Agreement shall continue to govern the relationship between the Parties.

5. FEES AND PAYMENTS; ORDER FORM

5.1 From time to time, Customer’s engagement with Brainworks may be pursuant to one or more Order Forms. “Order Form” means a mutually acceptable written document or online-accessible form whether or not titled or specifically identified as such, which is signed or electronically executed by authorized representatives of each of the Parties, and which sets forth various terms and conditions applicable to the Services to be provided by Brainworks, and which may include any or all of the following: (a) the specific description of the particular Software and any additional terms and conditions relating to the use thereof; (b) the applicable Term; (c) the applicable Charges (defined below) payable by Customer to Brainworks; (d) payment terms; and (e) mutually-agreed to exhibits, schedules, or attachments including any applicable fee schedules. Subject to the terms and conditions of this Agreement, upon the execution and delivery of an Order Form by the Parties, that Order Form is automatically incorporated into and made a part of this Agreement. To the extent any provision set forth in any particular Order Form conflicts with any provision set forth in this Agreement, the provision set forth in this Agreement shall govern, unless and then only to the extent the Order Form expressly states the Parties’ mutual intention that the particular provision of the Order Form shall control over the particular provision of the Agreement and such Order Form identifies such provision of the Agreement with particularity. Customer acknowledges and agrees that the execution of an Order Form is not required in every case and the absence of an Order Form does not render this Agreement ineffective.

5.2 If Customer purchases a paid Software subscription, Customer understands that use of the Software will result in payments by Customer for the access to the Software (“Charges”). After Customer has purchased such a paid Software subscription, Customer shall timely pay all Charges attributable thereto, and Brainworks will process payment of the applicable Charges, using the preferred payment method designated in Customer’s account, and will send Customer a receipt by email. The Charges do not include, and Customer shall be responsible for paying all, local, state, federal or foreign sales, use, excise, VAT or other taxes, levies, duties, or tariffs of any nature that may be due relating to this Agreement and the Software provided hereunder, except for taxes based on the income of Brainworks. Any questions relating to Charges or disagreement with the Charges should be addressed to Brainworks by contacting Privacy@Brainworks.com. Brainworks reserves the right to establish, remove, and/or revise Charges for any or all aspects of the Software at any time in Brainworks’s sole discretion by posting or otherwise delivering notice to Customer. Any use of the Software after a notice of new or revised Charges has been posted through the Software or delivered to Customer will be deemed Customer’s acceptance of the new or revised Charges. Brainworks may from time to time provide certain clients or prospective clients of Brainworks with promotional offers and/or discounts that may result in different Charges for the same or similar Software access, and Customer agrees that such promotional offers and/or discounts, unless also made available to Customer, shall have no bearing on Customer’s use of the Software or the Charges applied to Customer. When Customer purchases any time-based paid Software subscription, auto-renewal will automatically be selected in Customer’s account with respect to such paid Software subscription. At the end of each selected subscription period, an order will automatically be placed for Customer for the applicable subscription renewal and Brainworks will process payment of the applicable Charges, using the preferred payment method designated in Customer’s account, and Brainworks will send Customer a receipt by email for such subscription. If Customer does not wish Customer’s subscription to auto-renew, Customer may cancel its Software subscription at any time on Customer’s account prior to the end of the then-current subscription period or email Brainworks at Privacy@Brainwork.com.

5.3 In connection with any payments made through the Software, You may be asked to provide customary billing information such as name, billing address and credit card or other payment information either to Brainworks or its third-party payment processor(s) or e-commerce partners. In some cases, you may be asked to used a credit card or other saved payment method. In such case, you hereby authorize the payment and collection of any and all such amounts by the charging of the credit card, or via such other payment method accepted by Brainworks. If you are directed to any Brainworks’ third party payment processor(s), you may be subject to terms and conditions governing use of that third party’s service and that third party’s personal information collection practices. You understand and agree that Brainworks reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card or other payment method for any fees or charges for or associated with any Software or (ii) charge your credit card or other payment method a nominal amount, not to exceed one dollar ($1) per verification, or a similar sum in the currency in which you are transacting, to verify your credit card or other payment method. Brainworks does not control, and is not responsible for, any fees or charges that may be charged to a User by your bank, financial institution, or payment provider, with respect to Brainworks’ collection of fees or payments, and Brainworks expressly disclaims all (and you agree that Brainworks will have no) liability in this regard.

6. CUSTOMER’S DUTIES AND RESTRICTIONS

6.1 Customer Account. Customer is solely responsible for maintaining the confidentiality of Customer’s account (including any access credentials thereto) and for all use of such account. Customer shall not permit any third party to use the Software through Customer’s account. Notwithstanding the foregoing, Customer shall be solely responsible for all use of the Software under Customer’s account, whether or not such use was in fact performed by Customer. Customer hereby agrees that the act or omission of any user of Customer’s account shall be deemed to be the same as if performed by Customer.

6.2 Affirmative Covenants. Customer shall: (i) comply with this Agreement; (ii) take all necessary steps to prevent unauthorized access to or use of the Software, (iii) notify Brainworks immediately of any such unauthorized access or use; (iv) comply with all applicable federal, state, local, municipal, domestic, foreign, and international laws, rules and regulations (“Law”); (v) use the Software in compliance with all applicable industry standards; (vi) use the Software only for Customer’s own internal business purposes and solely in accordance with the terms of this Agreement (provided that Customer may use the Software (including screenshots therefrom) in connection with public presentations and lectures, provided further that Customer appropriately attributes the Software to Brainworks); (vii) use the Software solely in accordance with Brainworks’s instructions; and (viii) ensure that Customer’s officers, directors employees, contractors, representatives, agents and affiliates (collectively, “Representatives”) comply with this Agreement.

6.3 Restrictive Covenants. Customer shall not, and Customer will cause Customer’s Representatives to not: (i) alter, change, modify, adapt, translate, or make derivative works of the Software; (ii) use the Software in a manner that, or provide any direction to Brainworks that, violates any applicable Law; (iii) transmit any virus or programming routine intended to damage, surreptitiously intercept, or expropriate any system or data; (iv) transfer, resell, license, sublicense, or otherwise make the Software (or any data or information accessible through the Software) available to any third party, except as expressly described in this Agreement; (v) use the Software for timesharing, rental, outsourcing, or a service bureau operation; (vi) attempt to gain, or assist others with attempting to gain, unauthorized access to Brainworks’s network, systems, or the Software; (vii) decipher, decompile, disassemble, or reverse engineer the Software or assist or encourage any third party to do so; (viii) engage in any activity that violates the rights of Brainworks or of others, that interferes with or disrupts the Software, or that could damage the reputation of Brainworks; (ix) upload any file containing any back door, time bomb, Trojan horse, worm, virus, malware, or similar malicious code; (x) use the Software or any Brainworks materials for the development of any software program, model, algorithm, or generative AI tool, including, but not limited to, training or using any of the foregoing in connection with the development or operation of a machine learning or artificial intelligence (AI) system (including any use of any of the foregoing for training, fine tuning, or grounding the machine learning or AI system or as part of retrieval-augmented generation); or (xi) use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, “scrape,” “crawl” or “spider” features or services contained in or comprising the Software.

6.4 Export Control Restrictions. Customer warrants that its use and its Representatives’ use of the Software shall comply with all applicable export control laws and agrees to indemnify, defend, and hold harmless Brainworks from any liability, claim, loss, or expense suffered or incurred by Brainworks as a result of a breach of this warranty.

7. NOTICE OF ALLEGED INFRINGEMENT

If you are an intellectual property owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged infringements taking place on or through the Software by submitting a complete Notice of Alleged Infringement as described below and delivering it to Brainworks. Upon receipt of the Notice as described below, Brainworks will take whatever action, in its sole discretion, it deems appropriate, including removal of the alleged infringing content from the Software.

7.1 Provide your mailing address, telephone number, and, if available, email address.

7.2 Identify the intellectual property that you claim has been infringed by providing a comprehensive list of the items (works, trademarks, etc.) that you claim have been infringed. If your work is registered with the United States Patent and Trademark Office, United States Copyright Office, or other intellectual property office or jurisdiction, you must include copies of the registration certificates or information sufficient to confirm that such work is in in fact protected.

7.3 Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Software where such material may be found.

7.4 Provide your full legal name and electronically sign and affirm the following statement: "I hereby affirm that I have a good faith belief that the disputed use of the material is not authorized by the owner, its agent, or the law (e.g., as a fair use). I affirm that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the Intellectual Property or of an exclusive right under the Intellectual Property that is allegedly infringed."

7.5 Deliver this Notice, with all items completed, to Brainworks by email to Privacy@Brainworks.com.

8. DISCLAIMERS AND LIMITATIONS

8.1 Warranty Disclaimer. BRAINWORKS MAKES NO WARRANTY, (EXPRESS, IMPLIED, OR STATUTORY) AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SOFTWARE IS PROVIDED ON AN “AS-IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. BRAINWORKS DOES NOT WARRANT THAT THE SOFTWARE, ITS FUNCTIONALITY, OR ITS WORK PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SOFTWARE, ITS FUNCTIONALITY, OR ITS WORK PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE, COMPLETE, CURRENT, OR WITHOUT DELAY. CUSTOMER ACKNOWLEDGES THAT, AS A SAAS-BASED SERVICE, THE FUNCTIONALITY AND INTERFACES OF THE SOFTWARE MAY CHANGE OVER TIME. CUSTOMER EXPRESSLY AGREES THAT CUSTOMER’S USE OF THE SOFTWARE IS AT CUSTOMER’S SOLE RISK.

8.2 Limitation of Liability. BRAINWORKS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, DAMAGE TO PROPERTY, PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION, THE USE OR MISUSE OF SUBMISSIONS OR CONTENT IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE, WHETHER OR NOT BRAINWORKS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE FOREGOING EXCLUSION OF LIABILITY IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, AND A DETERMINATION IS MADE THAT BRAINWORKS IS LIABLE, UNDER NO CIRCUMSTANCES WILL BRAINWORKS BE LIABLE TO CUSTOMER FOR MORE THAN THE AMOUNT CUSTOMER HAS PAID TO BRAINWORKS IN THE 30 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH CUSTOMER FIRST ASSERTS THE CLAIM.

8.3 Waiver and Release. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, IN NO EVENT SHALL BRAINWORKS BE LIABLE IN ANY WAY FOR ANY LOSS, INJURY, OR DAMAGE TO PERSON OR PROPERTY, OR ANY CLAIMS OR DEMANDS THEREFOR, ARISING OUT OF OR RELATED TO THE USE OF THE SOFTWARE OR THE RESULTS PRODUCED BY IT. CUSTOMER ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF LOSS, INJURY, DEATH OR DAMAGE ARISING OUT OF OR RELATED TO THE USE OF THE SOFTWARE OR THE RESULTS PRODUCED BY IT. ACCORDINGLY, CUSTOMER, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, SUCCESSORS, AND ASSIGNS, AND ITS AND THEIR OFFICERS, EMPLOYEES, CONTRACTORS, AND REPRESENTATIVES, HEREBY WAIVES ANY CLAIMS AGAINST AND RELEASES BRAINWORKS AND ITS AFFILIATES, SUCCESSORS, AND ASSIGNS, AND ITS AND THEIR OFFICERS, EMPLOYEES, CONTRACTORS, AND REPRESENTATIVES FROM ANY AND ALL LIABILITY FOR ANY AND ALL LOSS, INJURY, OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY OR LOSS TO PERSON OR PROPERTY ARISING OUT OF OR RELATED TO THE USE OF THE SOFTWARE OR THE RESULTS PRODUCED BY IT.

8.4 Prohibition of Claim. CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT OR RELATING TO THE SOFTWARE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

8.5 Indemnification. Customer will defend, indemnify, and hold harmless Brainworks, and its officers, directors, employees, contractors, representatives, agents, and affiliates, from and against any all and all liability, claims, actions and expenses, including attorneys’ fees and costs, arising out of Customer’s use of the Software, breach, or alleged breach, of this Agreement, or violation of applicable Law.

8.6 Application. THIS SECTION 8 SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE UNDER LAW AND SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT AND THE PROVISION OF SOFTWARE HEREUNDER.

9. INSURANCE

Brainworks agrees to maintain commercially adequate insurance coverage throughout the term of this Agreement. This insurance coverage shall include, but is not limited to, the following: (1) coverage to protect against claims of bodily injury, personal injury, and property damage arising out of Brainwork’s operations; (2) overage to address risks associated with data breaches, cyber-attacks, and other cybersecurity threats that may impact Brainworks Software or services; (3) overage to ensure protection against liabilities arising from the unauthorized access, use, or disclosure of personal data maintained by Brainworks consistent with its obligations set forth in this Agreement. Brainworks ensure that all insurance policies are maintained with reputable insurers and are sufficient to cover the risks associated with the services provided under this Agreement. Upon request, Brainworks shall furnish the Customer with certificates of insurance evidencing the required coverage.

10. GOVERNING LAW AND DISPUTE RESOLUTION

10.1 Governing Law. This Agreement will be governed by and construed under the laws of the State of New York, without reference to principles of conflict of laws. Any dispute arising between the Parties will be settled in an action commenced and maintained in any state or federal court in or for Suffolk County, New York. The Parties irrevocably consent and submit to the exclusive personal jurisdiction of such courts if there is any dispute between them and agree not to challenge or assert any defense to the jurisdiction of such courts.

10.2 Equitable Remedies. Customer acknowledges that the rights granted and obligations made hereunder to Brainworks are of a unique and irreplaceable nature, the loss of which will irreparably harm Brainworks and which cannot be replaced by monetary damages alone. Therefore, Brainworks will be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or threatened breach of this Agreement by Customer. Except as expressly provided in this Agreement, Customer irrevocably waives all rights to seek injunctive or other equitable relief and agree to limit such Customer’s claims to claims for monetary damages (if any).

10.3 Disputes.

10.3.1 To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (each, a “Dispute”), Customer and Brainworks agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. Customer will send its notice in accordance with Section 11.

10.3.2 If Customer and Brainworks are unable to resolve a Dispute through informal negotiations within thirty (30) days, either Customer or Brainworks may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one Party will be final and binding on the other. CUSTOMER UNDERSTANDS THAT ABSENT THIS PROVISION, SUCH CUSTOMER WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS, which is available at the JAMS website www.jamsadr.com. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Customer’s arbitration fees and its share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. To the extent consistent with the Rules, either party may elect to conduct the arbitration online by video conference upon prior written notice to the other party. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a Party. The arbitrator must follow applicable Law, and any award may be challenged if the arbitrator fails to do so.

10.3.3 Notwithstanding the above, Customer and Brainworks each agree that arbitration will be limited to the Dispute between Brainworks and the Customer individually. To the full extent permitted by Law: (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

10.3.4 Customer and Brainworks agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of Customer’s or of Brainworks’s Intellectual Property Rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief or to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

11. GENERAL TERMS.

Brainworks shall have the right to identify Customer as a Brainworks customer for purposes of promotion and marketing of the Software, subject to Customer’s prior approval which shall not be unreasonably withheld, delayed or conditioned (and will be deemed given if no contrary indication is received from Customer within one (1) week from the date of written request for approval). This Agreement does not create any agency, partnership, franchise, joint venture, or any other such relationship between the Parties. Neither Party is granted any express or implied right or authority to assume or create any obligation on behalf of or in the name of the other Party or to bind the other Party in any matter whatsoever. If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision will be automatically reformed and construed so as to be valid, legal, operative, and enforceable to the maximum extent permitted by applicable Law while preserving its original intent. The invalidity, illegality, or unenforceability of any part of this Agreement will not render invalid the remainder of this Agreement. Sections 1.3, 1.5, 2, 3, 4, 5, 6, 7, 8, 9, 11, and 11 shall survive and continue to bind the Parties after execution and delivery of this Agreement and its expiration or early termination to the extent and for as long as may be necessary to give effect to the rights, duties, and obligations of the Parties pursuant to this Agreement. Failure by a Party to insist upon strict performance of any provision herein by the other Party will not be deemed a waiver by the first Party of its rights or remedies or a waiver by it of any subsequent default by the other Party, and no waiver will be effective unless it is in writing and duly executed by the Party entitled to enforce the provision being waived. Except for Section 10.3, which can only be amended by mutual written consent of both Parties, Brainworks reserves the right, at Brainworks’s discretion, to change, modify, add, or remove portions of this Agreement at any time. Please check this Agreement periodically for changes. Customer’s continued use of the Software after the posting of changes to this Agreement constitutes Customer’s binding acceptance of such changes. Brainworks will make commercially reasonable efforts to notify Customer if Brainworks materially changes this Agreement. Brainworks may provide Customer with notices hereunder, including those regarding changes to this Agreement, by email, regular mail, or postings through the Software. Notice will be deemed given twenty-four hours after email is sent, unless Brainworks is notified that the email address is invalid. Notice posted through the Software is deemed given 24 hours following the initial posting. Notice to Brainworks under this Agreement shall be provided by Customer in writing by mail to the following address: 320 Carleton Ave, Suite 3000, Central Islip, NY 11722. In the case of notice posted by mail, notice will be deemed given three days after the date of mailing. Except with regard to payments due to Brainworks, neither Party will be liable for any delays or failures in performance due to circumstances beyond its reasonable control, including for example (but not limitation) natural disasters, such as floods, earthquakes, or severe weather events, epidemics, pandemics, quarantines, and/or other health emergencies, war, hostilities, terrorist acts, civil unrest, acts of government or the public enemy, organized labor activities, such as strikes or work slow-downs, or shortages of power, supplies, infrastructure, or transportation. Brainworks may assign this Agreement to any person at any time without any notice to Customer. Customer may not assign this Agreement without Brainworks’s prior written consent. Any sale of all or substantially all of a Party’s assets, business, or a majority of such Party’s voting securities or any merger or other change of control with respect to such Party shall be deemed an assignment for purposes of this Agreement. In this Agreement, unless a clear contrary intention appears: (i) where not inconsistent with the context, words used in the present tense include the future tense and vice versa and words in the plural number include the singular number and vice versa; (ii) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement; (iii) reference to any gender includes each other gender; (iv) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and includes all addenda, exhibits and schedules thereto; (v) the titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement; (vi) “hereunder,” “hereof,” “hereto,” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or Subsection of this Agreement; (vii) “including” (and with correlative meaning, “include”) means including without limiting the generality of any description preceding such term and (viii) any reference to “dollars” means United States Dollars. Except as amended after the date hereof pursuant to this Section 11, this Agreement (including any documents or webpages linked to in this Agreement and any Exhibits referenced herein) constitutes the entire Agreement between the Parties and supersede all prior and contemporaneous undertakings and agreements between the Parties, whether written or oral, with respect to the Software.

12. HOW TO CONTACT US

If you have any questions regarding this Agreement or our privacy practices, you can contact us at:

Address:  320 Carleton Avenue, Suite 3000, Central Islip, New York 11722

Telephone:  (631) 563-5000

Attn:  Software Support

Or by email at: Privacy@Brainworks.com