Legal
Terms of Service
THESE TERMS OF SERVICE (“TERMS OF SERVICE”) GOVERN YOUR ACCESS TO, AND USAGE OF, THE PLATFORM AND ARE EFFECTIVE AS OF THE DATE YOU ACCEPT THEM AS DESCRIBED BELOW (THE “EFFECTIVE DATE”).
BY ACCEPTING THESE TERMS OF SERVICE, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER THAT REFERENCES THESE TERMS OF SERVICE, OR BY ACCESSING AND USING THE PLATFORM, USER (AS DEFINED BELOW) AGREES TO THE TERMS SET FORTH IN THESE TERMS OF SERVICE. IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS OF SERVICE, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the party hereby agree as follows:
DEFINITIONS.
The definitions for some of the defined terms used in these Terms of Service are set forth below. The definitions for other defined terms are set forth elsewhere in these Terms of Service.
“Affiliate” means any Person that, directly or indirectly, Controls, is Controlled by, or is under common Control with, a specified Person.
“Applicable Law” means any applicable national, federal, state, county, and local law, ordinance, regulation, rule, code, and order.
“Authorized Users” means User’s employees and Contractors whom User authorizes to access and use the Platform; provided, however, that any Contractors’ access to, and use of, the Platform will be limited to their provision of services to User.
“Beta Features” means features, functionalities, and/or modules of the Platform that are not generally available to Brickroad’s customers for production use.
“Brickroad” means EmetX, Inc. d/b/a Brickroad.
“Confidential Information” means each party’s business and technical information in any form, including without limitation, the Platform, User Data, business and marketing plans, strategies, sales, product and financial data and projections, processes, techniques, trade secrets, know how, inventions, processes (business, technical, or other), designs, algorithms, source code, customer lists, and the terms of these Terms of Service. Confidential Information does not include information or data which is: (i) known to the party receiving the Confidential Information (the “Receiving Party”) prior to its receipt from the other party (the “Disclosing Party”) without a limitation or obligation of confidentiality under another agreement; (ii) independently developed by the Receiving Party without use of any Confidential Information; (iii) generally known to the public at the time of disclosure other than as a result of disclosure by the Receiving Party; or (iv) received from a third party with a legal or contractual right to disclose such information or data.
“Contractor” means any third party that is under contract to provide services to User.
“Control” or “controls” and the formatives “controlling” and “controlled” mean the possession, directly or indirectly, of fifty percent (50%) or more of the equity interests of another Person or the power otherwise to direct or cause the direction of the management and policies of such other Person, whether through ownership of voting securities, by contract, or otherwise.
“Core Schema” means the standard descriptive and connection attributes of a data source or Endpoint, including source URLs, Licensor contact information, access methods, and similar connection and descriptive metadata, in each case as generated or maintained by Brickroad or submitted by the applicable Licensor. Core Schema does not include, and Brickroad will not disseminate or otherwise make available to any other customer of the Platform, any Licensee-specific enrichments, including, without limitation, any assessment rubrics, scores, annotations, notes, tags, or other customizations applied by or on behalf of Licensee to any data source, Endpoint, or enrichment record (collectively, “Custom Enrichments”).
“Credits” means the non-monetary units of usage made available to Licensee under the applicable Plan, which Licensee may redeem to access and use designated features and functionality of the Platform, including Discovery Runs and such other features as Brickroad may designate from time to time. Credits (i) have no stated or implied cash value and are not redeemable for cash; (ii) are non-refundable and non-transferable, except as Brickroad may otherwise expressly permit in writing; (iii) are deducted from Licensee’s available balance of Credits in accordance with the consumption rates posted by Brickroad from time to time, which rates may vary by feature and may be updated by Brickroad on a prospective basis; and (iv) unless otherwise set forth in the Plan, expire upon expiration or termination of the Subscription Term. For the avoidance of doubt, Credits are distinct from, and may not be used to fund, a Wallet.
“Dataset” means the data, artwork, images, videos, content, data, or other works of authorship that have been licensed to a Licensee by a Licensor pursuant to an On Platform Transaction or an Off Platform Transaction. A Dataset may be either Off Platform Data or On Platform Data.
“Discovery Run” means a search, query, or other discovery task submitted by an Authorized User of Licensee through the Platform to identify, evaluate, or obtain Sample Data regarding potential data sources or Licensors.
“Documentation” means any documentation (whether in hard copy, electronic, or digital form) that Brickroad makes available to provide guidance and instructions regarding the specifications, operation, maintenance, and use of the Platform.
“Endpoints” means connections, including contact information, application programming interfaces, webhooks, and any other connection methods of connecting to Licensors, whether programmatic or otherwise.
“Fees” means the fees due to Brickroad for the Services, including any On Platform Fees. The Fees are set forth in the Plan. Fees include, without limitation, amounts payable by Licensee for Credits and amounts used to fund a Wallet.
“Intellectual Property Rights” means all intellectual and industrial property rights, whether now existing or existing in the future, including without limitation, (i) all patent rights, including any rights in pending patent applications and any related rights; (ii) all copyrights and other related rights throughout the world in works of authorship, including all registrations and applications therefor; (iii) all trademarks, service marks, trade dress, or other proprietary trade designations, including all registrations and applications therefor; (iv) all rights throughout the world to proprietary know-how, trade secrets, and other Confidential Information, whether arising by law or pursuant to any contractual obligation of non-disclosure; and (v) all other rights covering industrial or intellectual property recognized in any jurisdiction.
“Licensee” means the Person that is licensing the Sample Data and/or Datasets.
“Licensor” means the Person that owns or controls the necessary rights in the Dataset and Sample Data to be able to grant the licenses set forth in these Terms of Service, the On Platform License Terms, and/or the Off Platform License Terms, as applicable.
“Licensor Onboarding” means the Licensor intake and onboarding tool(s) made available by Brickroad through which Licensors and prospective Licensors submit information regarding themselves and their Datasets, including Licensor contact and organizational information, Dataset descriptions, Dataset metadata, and Sample Data. Licensors may submit Datasets and Sample Data through Licensor Onboarding by uploading data files using Brickroad’s file upload tool or by providing Brickroad with access to an Endpoint. Brickroad may charge Licensors a fee, which may be a recurring monthly fee, for access to Licensor Onboarding and related services, as set forth at the Licensor Onboarding Site (as defined in Section 2.9) or as otherwise agreed between Brickroad and the applicable Licensor.
“Malicious Code” means any computer virus, Trojan horse, worm, time bomb, or other similar code or hardware component designed to disable, damage, or disrupt the operation of, permit unauthorized access to, erase, destroy, or modify any software, hardware, network, or other technology.
“Off Platform Data” means a Dataset that is licensed to a Licensee pursuant to an Off Platform Transaction.
“Off Platform License Terms” means the Licensor terms and conditions governing Off Platform Transactions, as published by the applicable Licensor and made available to Licensee prior to each Off Platform Transaction, which are hereby incorporated into these Terms of Service by reference and which, solely as applied to Off Platform Data, shall control over any conflicting provision of these Terms of Service. Licensors may update the Off Platform License Terms from time to time, and any such update will apply prospectively to Off Platform Transactions entered into on or after the effective date of the update.
“Off Platform Transaction” shall have the meaning set forth in Section 2.11.
“On Platform Data” means a Dataset that is licensed to a Licensee pursuant to an On Platform Transaction.
“On Platform Fee” means the fee charged by Brickroad to Licensee in connection with each On Platform Transaction, in addition to any amounts payable for the applicable On Platform Data, as set forth in the Plan or as otherwise made available by Brickroad through the Platform.
“On Platform License Terms” means Brickroad’s terms and conditions governing On Platform Transactions, as published by Brickroad and made available to Licensee and Licensor prior to each On Platform Transaction, which are hereby incorporated into these Terms of Service by reference and which, solely as applied to On Platform Data, shall control over any conflicting provision of these Terms of Service. Brickroad may update the On Platform License Terms from time to time, and any such update will apply prospectively to On Platform Transactions entered into on or after the effective date of the update.
“On Platform Transaction” shall have the meaning set forth in Section 2.10.
“Person” means an individual, partnership, corporation, limited liability company, trust, joint venture, association, unincorporated organization, government agency, or political subdivision thereof or other entity.
“Plan” means the pricing plan selected by Licensee at the time of signup. During the Subscription Term, Licensee may upgrade the Plan, but may not downgrade the Plan. The Plans are available at https://brickroad.network/pricing.
“Platform” means: (i) Brickroad’s proprietary data provisioning platform, including Licensor Onboarding; and (ii) any Updates thereto.
“Platform Activity Data” means: (i) queries and prompts entered into the Platform by Authorized Users; (ii) records of the data sources discovered, enriched, verified, or returned by the Platform in response to such queries and prompts; and (iii) the identity of the Datasets and/or Sample Data retrieved in connection with such queries and prompts (not the Datasets or Sample Data themselves).
“Prohibited Content” means content that: (i) is illegal under Applicable Law; (ii) violates any third party’s Intellectual Property Rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; or (vii) contains Malicious Code.
“Sample Data” means sample data, extracts, or excerpts of Datasets retrieved from Licensors via the Platform in response to a sample request, including any such samples retained, stored, or cached by Brickroad in connection with the operation of the Platform. Licensees may use Sample Data solely for testing and evaluation purposes.
“Services” means Brickroad’s provision of access to, and usage of, the Platform as set forth herein and all related hosting, maintenance, and support services provided by Brickroad. Brickroad may perform the Services directly or through one or more subcontractors.
“Subscription Term” shall have the meaning set forth in Section 4.1.
“Super Administrator” means the Authorized User designated by User to manage the access and level of responsibility of all Authorized Users.
“Updates” means any error correction, bug fix, patch, enhancement, improvement, update, upgrade, new version, release, revision, or other modification to the Platform provided or made available by Brickroad pursuant to these Terms of Service.
“User” means the Person that has accepted these Terms of Service. For the avoidance of doubt, these Terms of Service apply to any Licensee and Licensor that accept these Terms of Service.
“User Data” means any and all (i) data uploaded to the Platform by Authorized Users; and (ii) any queries and prompts entered into the Platform by Authorized Users.
“Wallet” means a prepaid monetary balance maintained within the Platform on Licensee’s behalf, which Licensee may fund and use solely to pay for On Platform Data and On Platform Fees in connection with On Platform Transactions.
“Website” means any website through which Brickroad provides the Platform.
SUBSCRIPTION TERMS.
Subscription. During the Subscription Term: (i) Brickroad shall provide the Super Administrator access to the Platform’s administrative console via the Website; (ii) the Super Administrator shall create the accounts for (and manage) all Authorized Users; (iii) Brickroad shall provide Authorized Users access to the Platform via the Website; and (iv) Brickroad shall be responsible for hosting the Website, and User shall be responsible for obtaining Internet connections and other third-party software and services necessary for it to access the Website. User is responsible for the acts and omissions of its Authorized Users and any other Person who accesses and uses the Platform using any of User’s or its Authorized Users’ access credentials.
Access to Documentation. Brickroad shall provide User access to the Documentation, as may be updated from time to time in order to reflect any Updates. User may print copies of, use, and permit its Authorized Users to use, the Documentation solely in connection with the use of the Platform.
Restrictions on Use. User shall not (and shall not authorize or knowingly permit any Authorized User or third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, algorithms, file formats, or interface protocols of the Platform or of any files contained therein; (iii) copy, modify, adapt, or translate the Platform or otherwise make any use, resell, distribute, or sublicense the Platform other than in accordance with these Terms of Service; (iv) make the Platform available on a “service bureau” basis; (v) remove or modify any proprietary markings or restrictive legends placed on the Platform or the Documentation; (vi) use the Platform in violation of any Applicable Law; (vii) introduce into the Platform any Prohibited Content (including any User Data that is Prohibited Content); (viii) use the Sample Data for any purposes other than evaluating the applicable Licensors of such Sample Data; or (ix) violate any On Platform License Terms or Off Platform License Terms.
Title. Brickroad retains all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to Platform and the Documentation, and User shall have no rights with respect to the same other than those license rights expressly granted under these Terms of Service; (ii) User retains all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to the User Data, and Brickroad shall have no rights with respect to the same other than those license rights expressly granted under these Terms of Service; and (iii) Licensor retains all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to its Datasets and Sample Data, subject to the terms of any of its On Platform Transactions and Off Platform Transactions.
Modifications; No Contingency for Future Commitments. Brickroad may, in its sole discretion, modify the Platform from time to time by adding, deleting, or modifying features to improve the User experience; provided, however, that during the Subscription Term, such additions, deletions, or modifications to features will not materially decrease the overall functionality of the Platform. Unless otherwise expressly agreed by the party in writing, User agrees that payment of the Fees under these Terms of Service is not contingent on the delivery of any future Platform functionalities or features or any other future commitments, except as expressly set forth in these Terms of Service.
Beta Features. From time to time, Brickroad may invite User to try Beta Features at no charge. User may accept or decline any such trial in its sole discretion. Beta Features are for evaluation purposes only and not for production use, are not considered part of the Platform under these Terms of Service, are not supported, and may be subject to additional terms. Unless otherwise expressly agreed to by Brickroad, any Beta Feature trial period will expire upon the date that a version of the Beta Feature becomes generally available to all of Brickroad’s customers for production use or upon the date that Brickroad elects to discontinue such Beta Feature. Brickroad may discontinue Beta Features at any time in its sole discretion and may never make them generally available as part of the Platform. Brickroad will have no liability for any harm or damage arising out of or in connection with any use of a Beta Feature, and User uses any Beta Feature at its own risk.
Free Trials. If User registers for a free trial of the Platform, Brickroad will make the Platform available to User on a trial basis free of charge until the earlier of (i) the end of the free trial period for which User registered to use the Platform; or (ii) the start date of the Subscription Term ordered by User pursuant to a Plan. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms and Conditions by reference and are legally binding. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS OF SERVICE, DURING THE FREE TRIAL PERIOD, THE PLATFORM IS PROVIDED “AS-IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OR INDEMNIFICATION OBLIGATIONS ON THE PART OF BRICKROAD.
Licensors, Sample Data, and Datasets. Licensee acknowledges and agrees that: (i) Licensors are not employees or agents of Brickroad, and as such are not able to bind or otherwise obligate Brickroad; (ii) Licensee is solely responsible for determining the identity and suitability of Licensors; (iii) Brickroad makes no representations, offers no assurances, and does not investigate any of the Licensors or their Datasets, Sample Data, or Endpoints, and Licensee hereby acknowledges that Licensee assumes the risk of any encounter or interaction with such Licensors and any usage of Licensors’ Datasets, Sample Data, and Endpoints; (iv) Brickroad encourages Licensee to communicate directly with Licensors through the tools available on the Platform; (v) Brickroad does not endorse any Licensor; (vi) although Licensee is able to find information about Licensors and be connected to them through the Platform, (a) Brickroad is not a party to any transactions between Licensee and any Licensors and shall have no liability to any party in connection with such transactions; and (b) Brickroad recommends that in connection with any such transaction, Licensee and Licensor reduce their agreement to writing; (vii) Licensee requests for Datasets and/or Sample Data from a Licensor or for connection to a Licensor or its Datasets or Sample Data via an Endpoint via the Platform may result in Brickroad agents retrieving, retaining, storing, caching, reproducing, displaying, and further disseminating the Datasets, Sample Data, and Core Schema, of the applicable Licensor or Endpoint as part of its normal course of operations; and (viii) if Licensee uses Brickroad’s file upload tool to submit any data to the Platform, including in connection with a request for Datasets, Sample Data, or an Endpoint connection, such submission constitutes Licensee’s explicit acceptance of these Terms of Service as a condition to such submission. All Custom Enrichments constitute Licensee’s User Data and remain subject to Section 5.5. The foregoing is subject to any modified data retention configuration expressly agreed by Brickroad and Licensee in writing (including in any order form, enterprise agreement, or similar written agreement between the party), each of which may be memorialized electronically (each, a “Modified Data Retention Configuration”).
Licensor Onboarding.
Brickroad makes Licensor Onboarding available to Licensors and prospective Licensors, including through the online tool located at https://brickroad.network/supplier-onboarding (as may be relocated, renamed, or updated by Brickroad from time to time, the “Licensor Onboarding Site”).
Licensors may submit information, including Sample Data and Datasets, through Licensor Onboarding by (i) uploading files using Brickroad’s file upload tool; or (ii) providing Brickroad with access to an Endpoint from which Brickroad may retrieve Sample Data and/or Datasets.
As part of the normal course of operating the Platform, Brickroad may retain, store, cache, copy, reproduce, modify, create derivative works from, display, perform, distribute, sublicense, and otherwise use and exploit information submitted through Licensor Onboarding, including all Sample Data and Datasets (whether submitted by file upload or obtained via Endpoint access), to evaluate, onboard, index, and describe Licensors and their Sample Data and Datasets, to match Licensors and their Sample Data and Datasets to Licensee queries, to facilitate introductions, On Platform Transactions, and Off Platform Transaction between Licensors and Licensees, and to operate, maintain, and improve the Platform.
Brickroad may display, deliver, or otherwise make Dataset/Sample Data descriptions, Dataset/Sample Data metadata, and Sample Data available to Licensees and prospective Licensees in connection with the Services.
Brickroad shall make the applicable Datasets available to Licensees only pursuant to On Platform Transactions and Off Platform Transactions.
Any Person submitting information through Licensor Onboarding (including via Brickroad’s file upload tool) hereby grants to Brickroad an irrevocable, perpetual, non-exclusive, worldwide, royalty-free, fully paid-up, sublicensable (through multiple tiers), and transferable right and license to retain, store, cache, copy, reproduce, modify, create derivative works from, display, perform, distribute, and otherwise use and exploit such information, including all Sample Data (but excluding the Datasets), for any and all of the purposes described in this Section 2.9 and elsewhere in these Terms of Service, and represents and warrants that it (a) owns or otherwise has all rights, consents, and authorizations necessary to submit such information (including any Datasets) and to grant the rights and licenses set forth in this Section 2.9; and (b) the submission of such information, and Brickroad’s exercise of the rights and licenses granted in this Section 2.9 and Licensees’ usage of any Datasets pursuant to and in accordance with On Platform Transactions and Off Platform Transactions will not violate or infringe the rights of any third party or any Applicable Law. Each Person submitting information through Licensor Onboarding must expressly accept these Terms of Service, including this Section 2.9, at the time of such submission, including by means of a checkbox, click-through, or other acceptance mechanism presented in connection with Brickroad’s file upload tool or otherwise through Licensor Onboarding, as a condition to submitting such information.
On Platform Transactions. Brickroad enables Licensees to obtain a license to On Platform Data directly from Licensors via the Platform (each, a “On Platform Transaction”). A Licensee’s access to, and use of, On Platform Data obtained through an On Platform Transaction and a Licensor’s provision of such On Platform Data are governed by the On Platform License Terms, which are incorporated into these Terms of Service by reference and which, solely as applied to On Platform Data, control over any conflicting provision of these Terms of Service. In connection with each On Platform Transaction, Brickroad shall be entitled to charge, and Licensee shall pay, the On Platform Fee, in addition to any amounts payable for the applicable On Platform Data, in each case as set forth in the Plan or as otherwise made available by Brickroad through the Platform at the time of the applicable On Platform Transaction. A Licensee may fund a Wallet in order to pay for On Platform Data and On Platform Fees, as further described in Section 3.7. User acknowledges and agrees that: (i) Brickroad is not a party to, and assumes no obligation or liability under, any On Platform License Terms or On Platform Transactions; and (ii) any dispute regarding the On Platform Transaction is solely between the applicable Licensee and Licensor, and Brickroad will have no liability or responsibility therefor, except to the extent arising from Brickroad’s gross negligence, willful misconduct, or breach of these Terms of Service.
Off Platform Transactions; Limited Agency. Brickroad’s agents may, at a Licensee’s direction, connect directly to a Licensor’s or other third party’s Endpoint where such connection is not made available to Licensee as an On Platform Transaction (each, an “Off Platform Transaction”). With respect to each Off Platform Transaction, Licensee hereby appoints Brickroad as Licensee’s limited agent solely for the purpose of accessing, retrieving, and purchasing Off Platform Data via the applicable Endpoint on Licensee’s behalf and at Licensee’s direction. User acknowledges and agrees that: (i) the applicable Licensee and Licensor, and not Brickroad, are the contracting parties with respect to any terms of service, license, or other agreement of the applicable Licensor governing the Off Platform Transaction (the “Off Platform License Terms”); (ii) User accepts and agrees to be bound by the applicable Off Platform License Terms, which Brickroad will use commercially reasonable efforts to make available to Licensee at or prior to the time of the applicable Off Platform Transaction and which, solely as applied to Off Platform Data, control over any conflicting provision of these Terms of Service; (iii) Brickroad is not a party to, and assumes no obligation or liability under, any Off Platform License Terms or Off Platform Transactions; and (iv) any dispute regarding the Off Platform Transaction is solely between the applicable Licensee and Licensor, and Brickroad will have no liability or responsibility therefor, except to the extent arising from Brickroad’s gross negligence, willful misconduct, or breach of these Terms of Service.
FINANCIAL TERMS.
Fees. All Fees are non-cancelable, and, unless otherwise set forth herein, non-refundable.
Taxes.
All amounts payable under these Terms of Service are exclusive of sales and use taxes, value added taxes, and all other taxes and duties (except for any taxes on Brickroad’s net income, which shall be paid by Brickroad), the costs of which such taxes and duties shall be invoiced by Brickroad and paid by User in accordance with Section 3.3.
If the User is required by or under any Applicable Laws to make any withholding or deduction, Brickroad agrees to take commercially reasonable steps to avoid the withholding or deduction, provide exemption certificates if applicable, and otherwise act to mitigate the withholding or deduction. If any withholding or deduction is required notwithstanding such efforts, User shall gross up its payment to Brickroad as is necessary to ensure that Brickroad receives the full amount payable under these Terms of Service as if no such withholding or deduction had been made, subject to the tax savings provision of this Section.
Payments. Brickroad shall invoice User for the Fees and any applicable taxes in advance based on the duration of the Plan (i.e., monthly for monthly plans and annually for annual plans). User shall pay such invoices within thirty (30) days from the date that the invoices are deemed to be given under Section 9.1. Except as otherwise expressly provided in these Terms of Service, User shall not be entitled by reason of any set-off, counter-claim, or other similar deduction to withhold payment of any amount due to Brickroad.
Late Payments. Undisputed payments that are past due shall accrue interest at the lesser of one and one half percent (1.5%) per month, or the maximum rate permitted by Applicable Law. Brickroad shall be entitled to recover all reasonable costs of collection (including reasonable attorneys’ fees, expenses, and costs) incurred in attempting to collect undisputed payments from User that are more than thirty (30) days delinquent.
Suspension for Non-Payment. Brickroad may suspend the Services upon written notice to User if any undisputed invoiced amount is past due. Brickroad will not suspend the Services while User is disputing any invoiced amount reasonably and in good faith and is cooperating diligently to resolve the dispute. If the Services are suspended for non-payment, Brickroad may charge a re-activation fee to reinstate the Services.
Credits. Brickroad may make Credits available to Licensee under the applicable Plan for use in accessing designated features and functionality of the Platform, including Discovery Runs. Amounts payable by Licensee for Credits are Fees and shall be invoiced and paid in accordance with Section 3.3. Except as expressly set forth in the Plan, Credits (i) have no cash value and are not redeemable for cash or any other form of consideration; (ii) are non-refundable and non-transferable; (iii) are consumed at the rates posted by Brickroad from time to time, which rates may vary by feature and may differ from the rates in effect at the time Licensee purchased such Credits; and (iv) expire upon expiration or termination of the Subscription Term.
Wallets. Brickroad may permit a Licensee to establish and fund a Wallet in order to pay for On Platform Data and On Platform Fees in connection with On Platform Transactions. Amounts used to fund a Wallet are Fees and shall be invoiced and paid in accordance with Section 3.3, or, if Brickroad so permits, paid directly by Licensee through a payment method designated by Brickroad. Brickroad does not pay interest on, and Licensee shall bear all risk of loss with respect to, any funds held in a Wallet, except to the extent caused by Brickroad’s gross negligence or willful misconduct. Funds held in a Wallet are non-refundable, except as Brickroad may otherwise expressly agree in writing or as required by Applicable Law. Upon expiration or termination of these Terms of Service, any unused Wallet balance will be forfeited, unless Brickroad otherwise agrees in writing.
SUBSCRIPTION TERM AND TERMINATION.
Subscription Term. The initial Subscription Term begins on the Effective Date and shall continue for the period of time set forth in the Plan (the “Initial Subscription Term”). Upon expiration of the Initial Subscription Term or any Renewal Subscription Term, the Subscription Term shall automatically renew for successive periods of equal length to the Initial Subscription Term (each, a “Renewal Subscription Term” and collectively with the Initial Subscription Term, the “Subscription Term”), unless either party provides written notice to the other party of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term.
Termination.
In the event of a material breach of these Terms of Service by a party, the other party may terminate these Terms of Service by giving thirty (30) days prior, written notice to the breaching party; provided, however, that these Terms of Service shall not terminate if the breach is curable and the breaching party has cured the breach before the expiration of such thirty (30) day period.
These Terms of Service are terminable immediately without notice by a party if the other party commits a material breach of these Terms of Service and the breach is not curable or if the other party: (i) voluntarily institutes insolvency, receivership, or bankruptcy proceedings; (ii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within ninety (90) days of the filing of such proceeding; (iii) makes an assignment for the benefit of creditors; or (iv) undergoes any dissolution or cessation of business.
Brickroad may terminate these Terms of Service upon written notice to User under the limited circumstances set forth in Section 7.3 and Section 9.3 below.
Effect of Termination or Expiration. In the event of any termination or expiration of these Terms of Service: (i) User shall pay Brickroad for all amounts payable hereunder as of the effective date of termination or expiration; (ii) all rights and licenses granted hereunder to User shall immediately cease, and User and its Authorized Users shall immediately cease all access to, and usage of, the Website, the Platform, the Sample Data, and the Documentation; and (iii) each Receiving Party shall either return to the Disclosing Party, or, at the Disclosing Party’s direction, destroy and provide the Disclosing Party with written certification of the destruction of, all documents, computer files, and other materials containing any Confidential Information of the Disclosing Party that are in the Receiving Party’s possession, custody, or control; provided, however, that each Receiving Party may keep a copy of such Confidential Information for legal and/or regulatory purposes and/or as part of any electronic archival back-up system. For the avoidance of doubt, termination or expiration of these Terms of Service shall not affect a Licensee’s rights with respect to any On Platform Data and/or Off Platform Data, which shall continue to be governed by the applicable On Platform License Terms and/or Off Platform License Terms.
Survival. The following provisions shall survive any termination or expiration of these Terms of Service: Section 1 (“Definitions”), Section 2.4 (“Title”), Section 2.9 (“Licensor Onboarding”), Section 2.10 (“On Platform Transactions”), Section 2.11 (“Off Platform Transactions; Limited Agency”), Section 3 (“Financial Terms”) until all monies due have been paid in full, Section 4.3 (“Effect of Termination or Expiration”), Section 5 (“Confidentiality, Data, and Feedback”), Section 6.4 (“Disclaimer”), Section 7 (“Indemnification”), Section 8 (“Limitation of Liability”), Section 9 (“General Provisions”), and this Section 4.4 (“Survival”).
CONFIDENTIALITY, DATA, AND FEEDBACK.
Use and Disclosure of Confidential Information. The Receiving Party shall, with respect to any Confidential Information of the Disclosing Party: (i) use such Confidential Information only in connection with the Receiving Party’s performance of its obligations and exercise of its rights under these Terms of Service; (ii) subject to Section 5.3 below, restrict disclosure of such Confidential Information to only those employees, consultants, and subcontractors of the Receiving Party who have a need to know such Confidential Information in connection with the Receiving Party’s performance of its obligations and exercise of its rights under these Terms of Service; and (iii) except as expressly contemplated under the preceding clause (ii), not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so. Notwithstanding the foregoing, Brickroad may, reasonably and in good faith, disclose User’s Confidential Information as contemplated in these Terms of Service solely to perform Services on behalf of such User.
Protection of Confidential Information. The Receiving Party shall protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care).
Compliance by Personnel. The Receiving Party shall, prior to providing any employee, consultant, or subcontractor access to any Confidential Information of the Disclosing Party, inform such employee, consultant, or subcontractor of the confidential nature of such Confidential Information and require such employee or consultant to comply with the Receiving Party’s obligations hereunder with respect to such Confidential Information. The Receiving Party shall be responsible to the Disclosing Party for any violation of this Section 5 by any such employee, consultant, or subcontractor.
Required Disclosures. In the event the Receiving Party becomes or may become legally compelled to disclose any Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), the Receiving Party shall provide to the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use commercially reasonable efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
Use and Retention of User Data; Platform Activity Data; No Model Training.
Use of User Data. Subject to Section 5.5(c), Brickroad may: (i) during the Subscription Term, use any User Data to perform Brickroad’s obligations hereunder and to operate, maintain, secure, and improve the Platform and the Website; and (ii) both during and after the Subscription Term, provided that Brickroad de-identifies any and all such data so that User is not identified, merge such de-identified data with other data, and use such de-identified data for its reporting, planning, development, and promotional purposes and to improve the Platform, the Website, and its other products and services. Brickroad shall comply with its obligations under Applicable Laws in respect of User Data processed by it in connection with these Terms of Service.
Retention in the Normal Course. Subject to any Modified Data Retention Configuration, User acknowledges and agrees that, as part of the normal course of operating the Platform, Brickroad retains Platform Activity Data, including User’s queries and prompts, records of the data sources returned in response thereto, and Sample Data. Brickroad retains Platform Activity Data in order to provide and operate the Services, maintain audit trails and Service continuity, secure the Platform, and comply with its legal and regulatory obligations.
No Model Training. Notwithstanding anything to the contrary in these Terms of Service, Brickroad shall not use User’s queries or prompts (whether or not de-identified) to train any platform wide or third-party machine learning or artificial intelligence model, and shall not authorize or knowingly permit any third party to do so. For the avoidance of doubt, this Section 5.5(c) does not restrict Brickroad from: (i) processing queries and prompts through the Platform (including via third-party model providers acting as Brickroad’s service providers) solely in order to provide the Services to User; or (ii) using Platform Activity Data as otherwise permitted under Section 5.5(a) and Section 5.5(b) in a manner that does not involve the training, fine-tuning, or development of any machine learning or artificial intelligence model on User’s queries or prompts.
Irreparable Injury. Each party acknowledges that the other party may be irreparably harmed by any breach of this Section, and agrees that such other party may seek, in any court of appropriate jurisdiction, an injunction and/or any other equitable relief necessary to prevent or cure any such actual or threatened breach thereof, without the necessity of proving monetary damages or posting a bond or other security. The preceding sentence shall in no way limit any other legal or equitable remedy, including monetary damages, that the non-breaching party would otherwise have under or with regard to these Terms of Service.
Feedback. During the Term, User may elect to provide Brickroad with feedback, comments, and suggestion with respect to the Platform, Services, Sample Data, Datasets, and/or the Website (“Feedback”). User agrees that Brickroad shall be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to User.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
Mutual Representations and Warranties. Each party represents and warrants that: (i) these Terms of Service constitute its valid and binding obligation and are enforceable against it in accordance with the terms of these Terms of Service; and (ii) the execution and delivery of these Terms of Service by it and the performance of its obligations and exercise of its rights hereunder: (a) will not conflict with or violate any Applicable Law; or (b) are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it, including, without limitation, any non-disclosure, confidentiality, non-competition, or other similar agreement.
Representations and Warranties of Brickroad. In addition to the representations and warranties set forth in Section 6.1, Brickroad represents and warrants that: (i) Brickroad shall use commercially reasonable efforts to ensure that the Platform will not contain any Malicious Code; and (ii) all support services shall be performed in a professional and workmanlike manner.
Representations and Warranties of User. In addition to the representations and warranties set forth in Section 6.1, User represents and warrants that it has all consents, permissions, and authorizations necessary to upload the User Data to the Platform, to grant the rights granted hereunder, to run the queries and other searches via the Platform, and to use the results of such queries and searches. For the avoidance of doubt, the representations and warranties made by User in these Terms of Service are in addition to any representations and warranties that User makes in any On Platform License Terms and Off Platform License Terms.
Disclaimer. USER ACKNOWLEDGES AND AGREES THAT ALTHOUGH THE PLATFORM, THE WEBSITE, THE SERVICES, THE SAMPLE DATA, AND THE DATASETS CONTAINED THEREIN CAN BE USED AS AIDS TO USER TO MAKE INFORMED BUSINESS DECISIONS, THEY ARE NOT MEANT TO BE SUBSTITUTES FOR LEGAL OR BUSINESS ADVICE OR USER’S EXERCISE OF ITS OWN BUSINESS JUDGMENT. ANY SUCH DECISIONS OR JUDGMENTS ARE MADE AT USER’S SOLE DISCRETION AND ELECTION. WHEN THE PLATFORM, THE WEBSITE, THE SERVICES, THE SAMPLE DATA, AND THE DATASETS CONTAINED THEREIN INCLUDE ESTIMATES OR PREDICTIONS OF FUTURE EVENTS OR BEHAVIORS, BRICKROAD MAKES NO GUARANTEES AS TO THE OCCURRENCE OF SUCH FUTURE EVENTS OR BEHAVIORS. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1 AND SECTION 6.2, THE SERVICES, THE WEBSITE, THE PLATFORM, THEIR COMPONENTS, ANY DOCUMENTATION, THE SAMPLE DATA, THE DATASETS, AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY BRICKROAD HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND BRICKROAD MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THESE TERMS OF SERVICE AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT BRICKROAD MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
INDEMNIFICATION.
Indemnification by Brickroad. Subject to Section 7.2, Brickroad shall defend, indemnify, and hold harmless User and its officers, directors, managers, and employees from any and all liabilities, losses, damages, fines, penalties, costs, and expenses, including reasonable attorneys’ fees (collectively, “Losses”) incurred by them in connection with any third-party claim, action, or proceeding (each, a “Claim”) that the use of the Platform in accordance with these Terms of Service infringes, violates, or misappropriates any third-party Intellectual Property Rights. For the avoidance of doubt, Brickroad’s obligations under this Section 7.1 do not apply to Claims involving the Sample Data or the Datasets, only to the features and functionalities of the Platform.
Exceptions to Brickroad Indemnification Obligations. Brickroad shall not be obligated to indemnify, defend, or hold harmless the parties set forth in Section 7.1 to the extent that the Claim arises from: (i) use of the Platform in combination with modules, apparatus, hardware, software, or services not provided by Brickroad; (ii) use of the Platform in a manner that breaches these Terms of Service or any Applicable Law; or (iii) the alteration or modification of the Platform by a party other than Brickroad.
Infringement Claims. In the event that Brickroad reasonably determines that the Platform is likely to be the subject of a Claim of infringement, violation, or misappropriation of third-party Intellectual Property Rights, Brickroad shall have the right (but not the obligation), at its own expense and option, to: (i) procure for User the right to continue to use the Platform as set forth hereunder; (ii) replace the infringing components of the Platform with other components with the same or similar functionality that are reasonably acceptable to User; or (iii) suitably modify the Platform so that it is non-infringing and reasonably acceptable to User. If none of the foregoing options is available to Brickroad on commercially reasonable terms, Brickroad may terminate these Terms of Service without further liability to User, in which case Brickroad shall promptly provide User with a pro-rata refund of any Fees paid, but not used, by User. This Section 7.3, together with the indemnity provided under Section 7.1, states User’s sole and exclusive remedy, and Brickroad’s sole and exclusive liability, regarding infringement, violation, or misappropriation of any Intellectual Property Rights of a third party.
Indemnification by User. User shall defend, indemnify, and hold harmless Brickroad and its officers, directors, managers, and employees from any and all Losses incurred by them in connection with any Claim: (i) arising from User’s or its Authorized Users’ gross negligence, willful misconduct, violation of Applicable Law, or breach of these Terms of Service, On Platform License Terms, and/or Off Platform License Terms; and/or (ii) alleging that the use of the User Data in accordance with these Terms of Service breaches, infringes, violates, or misappropriates the rights of any third-party, including, without limitation, Intellectual Property Rights, or violates any Applicable Law.
Procedure for Handling Indemnification Claims. In the event of any Claim for which indemnification is available, the indemnified party shall give prompt written notice of any such Claim to the indemnifying party; provided, however, that the failure of the party seeking indemnification to give timely notice hereunder will not affect rights to indemnification hereunder, except to the extent that the indemnifying party demonstrates actual damage caused by such failure. The indemnifying party shall have the right to control and direct the investigation, defense, and settlement of each such Claim. The indemnified party shall reasonably cooperate with the indemnifying party (at the indemnifying party’s sole cost and expense) in connection with the foregoing. The indemnified party may participate in the defense of the Claim with counsel of its own choosing, at its own cost and expense, on a strictly monitoring basis. The indemnifying party shall not enter into any settlement or resolution of any Claim that would constitute an admission of guilt or liability on the part of the indemnified party, without the indemnified party’s express prior written consent (such consent not to be unreasonably withheld, conditioned, or delayed).
LIMITATION OF LIABILITY.
Liability Exclusion. SUBJECT TO SECTION 8.3, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF USE, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT, OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF THESE TERMS OF SERVICE, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
Limitation of Damages. SUBJECT TO SECTION 8.3, EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID AND PAYABLE TO BRICKROAD BY USER UNDER THESE TERMS OF SERVICE DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.
Exceptions. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 8.1 AND SECTION 8.2 SHALL NOT APPLY TO: (i) A PARTY’S INDEMNIFICATION OBLIGATIONS; (ii) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (iii) USER’S FAILURE TO PAY ANY UNDISPUTED SUMS DUE HEREUNDER OR BREACH OF SECTION 2.3.
GENERAL PROVISIONS.
Notices. Unless otherwise specified herein, all notices and other communications between the party (other than routine operational communications) required or permitted by these Terms of Service or by Applicable Law, will be deemed properly given, if given by: (i) personal service; (ii) registered or certified mail, postage prepaid, return receipt requested; or (iii) nationally or internationally recognized private courier service to the respective addresses of the party set forth above or such other address as the respective party may designate by like notice from time to time. Notices so given shall be effective upon: (a) receipt by the party to which notice is given; or (b) on the fifth (5th) business day following mailing, whichever occurs first.
Relationship of the Parties. Each party is an independent contractor of the other party. Nothing herein shall constitute a partnership between or joint venture by the party, or constitute either party the agent of the other.
Assignment. Neither party may assign or otherwise transfer any of its rights or obligations under these Terms of Service without the prior, written consent of the other party; provided, however, that each party may, upon written notice to the other party and without the consent of the other party, assign or otherwise transfer these Terms of Service: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise); provided, further, however, that if Brickroad objects to any such assignment in subsection (i) or (ii), it may terminate these Terms of Service on written notice to User. Notwithstanding anything to the contrary in this Section, the scope of use of the Platform and Services cannot in any way be broadened by an assignment hereunder, and in such case, the party shall negotiate a modification to these Terms of Service in good faith, including re-pricing the Fees. Any assignment or other transfer in violation of this Section shall be null and void. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the party hereto and their permitted successors and assigns.
Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations under these Terms of Service to the extent such failure or delay or both is caused, directly or indirectly, without fault by such party, by any reason beyond its reasonable control, including, without limitation, fire, flood, earthquake, elements of nature or acts of God, acts of state, acts of war, terrorism, riots, civil disorders, rebellions, revolutions, quarantines, pandemics, embargoes, and other similar governmental action (each a “Force Majeure Event”). Any party so delayed in its performance will promptly notify the other and describe in reasonable detail the circumstances causing such delay. In such event, the performance times shall be extended for a period of time equivalent to the time lost because of the excusable delay; provided, however, if the delay or failure continues for more than thirty (30) consecutive days, the party not relying on the excusable delay may terminate these Terms of Service upon written notice to the other party.
Governing Law, Venue. The validity, interpretation, and performance of these Terms of Service shall be governed by the laws of the State of New York without giving effect to the conflicts of laws provisions thereof. Any disputes, controversies, or claims in connection with or arising out of these Terms of Service, their negotiation, breach, existence, validity, or termination, shall proceed in a federal or state court located in the State of New York, Borough of Manhattan. Each party hereby irrevocably submits to the exclusive jurisdiction of such courts. Each party irrevocably waives, to the fullest extent permitted by Applicable Law, any objection to the laying of venue in such courts of any legal action or proceeding arising out of or relating to these Terms of Service and any claim that any such action or proceeding has been brought in an inconvenient forum. Service of process shall be made in any manner allowed by Applicable Law.
Modification. No modification of, or amendment to, these Terms of Service shall be effective unless in writing signed by authorized representatives of both party.
No Waiver. The rights and remedies of the party to these Terms of Service are cumulative and not alternative. No waiver of any rights is to be charged against any party unless such waiver is in writing signed by an authorized representative of the party so charged. Neither the failure nor any delay by any party in exercising any right, power, or privilege under these Terms of Service shall operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege shall preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
Severability. If any provision of these Terms of Service is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms of Service will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the party’ intent.
Entire Agreement. These Terms of Service contain the entire understanding of the party with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms, or conditions, and neither party has relied upon any representation, express or implied, not contained in these Terms of Service. In the event of any conflict between any terms or conditions contained in the body of these Terms of Service and a Modified Data Retention Configuration, the following order of priority shall govern (in descending order): (i) Modified Data Retention Configuration; and (ii) the terms and conditions contained in the body of these Terms of Service.
Third-Party Beneficiary. There are no other third-party beneficiaries hereunder.