Term and Termination
Warranty and Liability
These Terms constitute a legally binding contract (Agreement) that affects your legal rights and obligations. Your access to and use of the Site and Services is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all customers, visitors, users and others who access or use the Site or Services. By accessing or using the Website you agree to be bound by these Terms. If you disagree with any part of the Terms then you may not access the Website or use any of our Services. These Terms may be updated at our discretion from time to time and will be effective as soon as they are made available. It is your responsibility to regularly review these Terms so that you are aware of any amendments or changes.
When capitalised, the following words in bold will have the following meanings:
Agreement means these Terms and Conditions, the Digital Order Form, the Digital Order Confirmation and the Service Level Agreement.
Applicable Law means any law, rule, regulation, code, condition, court ruling, obligation, requirement, binding requirement, guideline, ruling, ordinance or order of or any legal entitlement issued by, any Governmental Body and applicable from time to time to the performance of the obligations of the Parties to this Agreement.
Authorised Use or Use means the Use of our Services in strict accordance with the Terms of this Agreement.
Authorised User or User means an individual that is an employee or consultant that you or your clients have specifically authorised to use the Services.
Brand Brain is the trading name specified on your Digital Order Confirmation owned and operated by Kensai LTD with registered offices at 193 Levita House Ossulston Street, London, United Kingdom, NW1 1EZ, also known as ‘we’, ‘us’, ‘our’, ’ours’ or licensor.
Content refers to all media, data or any information outputted by our software or Services, or displayed on our Site.
Customer, Licensor or You means the party indicated as a customer on a Digital Order Form.
Customer Data refers to all media, data or any information inputted by you or your Authorised Users to our Site or Services.
Data refers to all media, data, metadata or any information outputted by any of our Site or Services
Digital Order Confirmation is the statement of work document that outlines the purchased Services, defines you as the Customer, contains a digital signature and your payment terms.
Digital Order Form is an online order or document outlining the Services that we agree to provide to you and any Third-Party Services, where applicable.
Exported Data is Data that is downloaded, shared or exported from our Site or Services.
Intellectual Property Rights, IP or IPR means in respect of the software owned by the Licensor (and as modified from time to time by the Licensor) and known as ‘Brand Brain’, any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, rights in software, the right to sue for passing off, domain names and all similar rights and, in each case, whether registered or not, including any applications to protect or register such rights, including all renewals and extensions of such rights or applications, whether vested, contingent or future, and wherever existing.
Late Fees are interest fees at 1.5% above the base rate of Barclays Bank PLC compounded monthly, or higher if allowed by Applicable Law, that we may charge you for late payment of fees. Third-Parties may also charge you interest on Late Fees owed for Third-Party Services.
Licensed IPR means all the Intellectual Property Rights, but excluding any Third-Party IPR.
Party or Parties means you or us as signatories to this Agreement.
Services are the services performed by Brand Brain and any Third-Party Services, if any, outlined in the Digital Order Confirmation.
Site or Website is any website, domain or sub-domain of www.brandbrain.ai.
Subscription means an arrangement to receive our Services regularly by paying in advance as outlined in this Agreement.
Term means the duration of this Agreement as further outlined in the Terms and Termination section of this Agreement.
Third- Party refers to a person or entity not connected to this Agreement but who may be affected by its outcome.
Third-Party IPR indicates that the licence under this Agreement does not transfer or grant any rights in any Third-Party IPR to the Licensee, and the Licensee shall be responsible for procuring at its own cost and expense the right to use any Third-Party IPR.
Third-Party Services are the services or products made available to you by any Third-Party through our Services.
Third-Party Content refers to any and all products, media, data, content, advertising, or any information belonging to a Third-Party.
Third-Party Sites means any website, domain or sub-domain of a Third-Party.
Your Brand Brain License enables you to access our Services. Brand Brain uses artificial intelligence (AI) to monitor broadcast, traditional online and social media and present this information to our Customers. Search results are filtered and link to Third-Party Sites and Third-Party Content.
We warrant that throughout the Term of your Subscription we will maintain all permissions and licences required to fulfil our obligations under this Agreement, not make material changes that effect the Services in an adverse way, and provide full support in line with our Service Level Agreement.
When you agree to access our Services by signing a Digital Order Form, those Services are subject to the terms of this Agreement. Upon purchase of a Subscription, Brand Brain grants you a non-transferable, non-exclusive license and right for use and access of our Services on a hosted basis to your Authorised Users for internal business use only. Access must be limited to your companies employees, except in the case of external consultants legally contracted to your company, who you must ensure uses the Site and Services in accordance with these Terms.
You are responsible for your use of the Brand Brain Services, and the usage of any employees or contractors who have been granted access under the Terms of this Agreement. You agree to ensure that all usage is lawful, especially respecting those laws surrounding Data Privacy and Intellectual Property Rights. You also agree responsibility for compliance with the Youtube Terms of Service, normally at https://www.youtube.com/t/terms and the Twitter Terms of Service, normally at http://twitter.com/tos.
You will not use, copy or distribute any Content that has been created as any part of the Service other than in accordance with these Terms. You may not disclose or distribute personal, sensitive or confidential about yourself, any other Third-Party, of any part of the Site and Service. You must not intentionally or unintentionally break any law while using any Service or part of the Site. You may not use the site to commit any criminal or fraudulent activity and any such activity perpetrated is in contravention of these Terms.
You agree to bear sole responsibility of ensuring that any Content or or usage of the Site complies with all Applicable Laws, including those relating to non-discrimination and equality.
You are prohibited from attempting to hack or gain unauthorised access to the Site or any part of the Service, or modifying or reverse engineering any of the Software, or knowingly or unknowingly introducing a computer virus, DDOS attack or malware into the Site. You are forbidden from sending spam or any other form of marketing or mass marketing communication using our service.
We do not verify or check each link to Third-Party Sites so we do not endorse, recommend, nor can be held responsible for any Third-Party Content accessed through our Website or Services. You agree not to license, modify, sell, distribute, reproduce, copy, transmit or use Third-Party Content unless you have been granted permission from that Third-Party Site. You are responsible for all access to Third-Party Sites and where accessed you agree to be bound by its terms and conditions. Additionally, some Third-Party Sites may charge for viewing content, in which case, you expressly acknowledge that this is not included in your Subscription.
You are responsible for maintaining an internet connection and owning all hardware required to access our Services. It is also your responsibility to look after your password that you use to access the Site and by complying to these Terms you agree not to disclose your password to any Third-Party, individual or entity. To change your password at any time please select “forgot password” at login. If you believe there has been a security breach or unauthorised account access or use please notify us immediately by emailing [email protected]i.
If you are an agency using Brand Brain on behalf of a client then you agree that all agreements with your clients protect Brand Brains rights as set out in these Terms, permit you to act on their behalf, and provide us with your clients details if requested by us. You further agree that a provision of our Services shall not create any relationship of agent and principal between you and us and neither you nor us have any power or authority to contract or to bind in the name of the other Party. Payments due to Brand Brain are to be paid regardless of your clients payment relationship or credit-worthiness with your business.
You are solely responsible for data exported from the Service. If an Applicable Law or third-party legally binds us into removing Content or Data, we will notify you during or after the Term and you will be responsible for your compliance in removing the Data from your systems.
This Website contains information, Content and images where the copyright is vested within Brand Brain or our Licensors. We reserve all rights. You may download or view the Content but you may not display, edit, commercially exploit, copy, reproduce, disseminate, publish, distribute, store, transmit in any form or Use the Content without our express written permission.
Some of the Services of Brand Brain allows customers to upload their own Customer Data for artificial intelligence analysis. You must ensure that all Customer Data uploaded to the site is legal and has the approval of any and all rights holders or licensors. The User indemnifies us against all claims made when uploading Customer Data.
When uploading Customer Data, you hereby grant to Brand Brain, for the purpose of providing the Services, a non-exclusive, worldwide, perpetual, royalty-free, fully-paid, transferable licence to host, cache, copy, sub-licence, display, transmit, upload, transfer, download and distribute your Content in connection with the Services.
We reserve the right to terminate your access to the Services if any of your Customer Data is unlawful, untrue, misleading or defamatory, or constitutes a violation of intellectual property rights, or of a persons right to privacy, or is in breach of any legal duty owed by us to any Third-Party.
The price of Our Services is displayed on your Digital Order Confirmation. Unless where stated, you are billed for Services for the duration of the Term and not for usage. The Services set out in the Digital Order Confirmation cannot be decreased during the Term, but may be increased if requested in a new Digital Order Form.
All payments are to be paid upfront in a single payment. You will receive your Digital Order Confirmation at the start of your Subscription for new customers or in advance of renewal for existing customers. Our payment terms are 30 days net from the invoice date, unless paid up front in full. This fee does not include payment for additional content that may be linked to on Third-Party Sites.
We can accept payment via electronic bank transfer or credit/debit card.
You must ensure that we are provided with up to date information required for us to invoice you. Failure to make payment within 30 days of the invoice due date will incur additional Late Fees and will result in termination of access to our Services until payment is made in full. Additionally, you will pay on demand all out-of-pocket costs and legal fees reasonably incurred by us to collect any Late Fees or other associated charges.
All fees quoted are exclusive of taxes, levies, charges or similar governmental payments. When we are required to add sales taxes, VAT or goods and services taxes (collectively Taxes), we or a Third-Party will invoice you or include this in your Digital Order Confirmation unless provided with an exemption certificate from the relevant authority.
Thanks to our cloud AI we are able to guarantee Service uptime of 99.5% for the duration of your Term. We have a full support team who are there to help with any of our features in the event of any issues and if we haven’t got it resolved within 2 working days then we’ll credit it you pro rata for the duration of the outage. We use best endeavours to give you full availability, however this does not include when interruptions to the Service are caused by scheduled downtime, emergency repairs, or upon a failure of communication links or equipment.
If found to be in material breach of this Agreement and we don’t remedy this within 30 days of receiving written notice, we will refund the Services found to be in breach pro-rata.
We reserve all right to remove any Content of Data from the Website without reason or notice and hold no responsibility, nor have any liability to you in any way or in any circumstances.
Brand Brain will provide Services during the Initial Term (Initial Term) of this Agreement that will be indicated by a start and end date on your Digital Order Confirmation, unless this Agreement is terminated, in which case your rights of Use expire. To facilitate easy renewal, all services are offered at an automatic renewal (Renewal Term and collectively the Term). To cancel your next Term, we require cancellation in writing a minimum of 60 days from the end of your current Term. If we do not receive notice of cancellation before 60 days of the end of your current Term, you agree that this Agreement and your Subscription will automatically renew for the same Term at pricing levels on the renewal date which are not to exceed 5% unless with prior written confirmation.
We may suspend or terminate access to our Site immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you knowingly or unknowingly breach the Terms without remedy once notified within 30 days.
All articles of the Terms which by their nature should survive any termination shall survive termination, including, without limitation, warranty disclaimers, ownership provisions, indemnity and limitations of liability.
If you attempt to market, sell, offer or develop a service or product that competes with our Services or your company is acquired by a competitor of our Services, we reserve the right to immediately terminate this Agreement.
Your right to use the Site and Services will immediately cease upon termination of this Agreement.
You may terminate this agreement If we are found to be in material breach of this Agreement and we don’t remedy this within 30 days of receiving written notice.
IP means in respect of the software owned by the Licensor (and as modified from time to time by the Licensor) and known as ‘Brand Brain software’ any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, rights in software, the right to sue for passing off, domain names and all similar rights and, in each case, whether registered or not, including any applications to protect or register such rights, including all renewals and extensions of such rights or applications, whether vested, contingent or future, and wherever existing.
The Licensor grants the Licensee a worldwide, non-exclusive, non-transferable, royalty-free licence to use the Licensed IPR subject to the licence conditions outlined in this Agreement. The licence is expressly non-transferable and cannot be licensed; and the Licensed IPR may only be used in connection with Licensee’s own business purposes.
The Licensee shall at its own expense do and execute, or ensure the doing or execution of, all matters, acts, documents, deeds and things Licensee may at any time require to formalise the licence of the Licensed IPR.
The Licensee shall not use the Licensed IPR contrary to any restriction stated in this Agreement, or otherwise in a way that is not expressly permitted by this Agreement.
Except to the extent such activities are permitted by applicable English law or are expressly agreed in writing by the parties to this Agreement, Licensee’s rights to use the Licensed IPR does not permit it to distribute, license, sell or otherwise deal in or encumber the Licensed IPR (or any part of them); nor translate, adapt, make any modifications, additions or enhancements to the Licensed IPR (or any part of them); nor combine, merge or otherwise permit the Licensed IPR (or any part of them) to become incorporated with any other work, nor arrange or create derivative works based on them; nor copy the Licensed IPR (or any part of them), except for such back-ups as are reasonably necessary, provided that the Licensee keeps accurate and up-to-date records of such copying containing such information as Licensor reasonably requests; nor or use the Licensed IPR on behalf of or make the same available to any Third-Party or allow or permit a Third-Party to do so.
Licensee’s rights to use the Licensed IPR shall not include the rights of any Third-Party to use or have access to the Licensed IPR unless expressly agreed by the Licensor in writing, and in any event Licensee shall ensure that all such use does not exceed Licensee’s permitted use and is controlled by Licensee; and is otherwise subject to and in accordance with the terms of this Agreement.
The Licensee agrees not to use Brand Brains logo, name or any content externally without our written consent.
Except for the Licensee’s licence right to use the Licensed IPR as expressly granted above the Licensee shall not acquire in any way, any title, rights of ownership, or Intellectual Property Rights of whatever nature in the same or in any copies and no other Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.
Licensee acknowledges and understands that the Licensed IPR contains confidential and proprietary information and it shall not conceal, modify, remove, destroy or alter in any way any proprietary markings of Licensor on or in the Licensed IPR or any related materials and documentation.
Licensee shall not use data mining, robots, screen scraping or any other data extraction or data gathering tools in the use of the Licensed IPR.
The licence under this Agreement does not transfer or grant any rights in any Third-Party IPR to the Licensee, and the Licensee shall be responsible for procuring at its own cost and expense the right to use any Third-Party IPR.
You grant us the right to modify, use or integrate Customer Data including Intellectual Property Rights for the duration of the Term. You warrant that you own or have acquired all rights to your Customer Data prior to delivery for use in Brand Brain Services.
Additionally, you grant us a perpetual, irrevocable, royalty-free, worldwide license to incorporate or use any enhancements, suggestions, recommendation, request, feedback or corrections to the Services or Site that arise through your usage.
Any printed or digital copy of any analyses, reports, alerts, output, information or other materials generated through Brand Brain is to be accredited with the attribution “Source: Brand Brain”.
To notify us if you believe any Content infringes your copyrights, please email [email protected] with the following; your full name, email address and telephone number, a link to Content on our site where the believed infringement has occurred, a link to the copyrighted work believed to have been infringed, a statement confirming how the use of the Content is not permitted by the copyright owner, its agent or the law, a statement that you are authorised to act on behalf of the copyright owner whereby there had been an alleged infringement and that the information supplied is accurate, and a signature of alleged copyright owner, or verification of authorisation to act on behalf of the copyright owner.
You must always be aware of the confidentiality of information gained during your usage of the Site and Services. It is expected that you understand the importance of treating information in a discreet and confidential manner.
All material including any downloaded data onto a laptop or PC, USB drive or any other storage device containing confidential information must be kept securely at all times.
Information regarding Brand Brain (specifically our product road-map, trade secrets, research, pricing, development and other non-public copyrighted materials) and our clients must not be disclosed either orally or in writing to unauthorised persons.
Conversations relating to confidential matters affecting the business, employees and clients should not take place in situations where they can be overheard (i.e. in corridors, reception areas, lifts, etc.).
You are reminded that all information that is or has been acquired by you during, or in the course of your Agreement, or has otherwise been acquired by you in confidence, relates particularly to Our business, or that of other persons or bodies with whom we have dealings of any sort; and has not been made public by, or with Our authority shall be confidential, and (save in the course of our business or as required by law) you shall not at any time, whether before or after the termination of your agreement, disclose such information to any person without Our prior written consent.
You are to exercise reasonable care to keep safe all data or other material containing confidential information.
Any breach of confidentiality may be regarded as a material breach and may result in the Termination of this Agreement. Any breach may cause irreparable damage and harm. Thus, in addition to all other remedies available at law or in equity, the disclosing party shall have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable legal fees and expenses) incurred in connection with such unauthorised use.
Clauses relating to Confidentiality shall continue to apply after the termination of our Agreement without limit in point of time but shall cease to apply to information ordered to be disclosed by a Court of competent jurisdiction or otherwise required to be disclosed by Applicable Law.
For the purposes of clarity, you shall not at any time (save as required by law) before or after the termination of your agreement, disclose such information to any person save for legal advisers, accountants, corporate affiliates or other professional advisers (Permitted Recipients) where required without our prior written consent. When Confidential information is disclosed to Permitted Recipients it will be held in strict confidence and you will remain responsible for any use or disclosure.
We warrant that we have full legal power to enter into this agreement and that we will maintain the Services in accordance with this Agreement.
You warrant that you have full legal power to enter into this agreement and that you have full rights and ownership of any Customer Data uploaded to the Website or Services.
Please read the following clauses carefully as the clauses limit and/or exclude each party’s liability:
To the fullest extent permitted by law, neither Party’s total aggregate liability in connection to or arising out of this Agreement whether in contract, tort (including negligence) or otherwise will exceed $25,000 or the price of your current Subscription over the previous calendar year.
Neither party will be liable for consequential, punitive or indirect damages in connection to or arising out of this Agreement. Consequential damages can include loss of goodwill, profit, business reputation, costs, charges, data, special, indirect, consequential loss, expenses or charges.
You agree to give us time that we deem reasonable to correct or remedy any matter for which we may be liable before incurring any costs. We revoke liability for costs you incur before giving us a chance to remedy the matter.
Without prejudice to the generality of the foregoing paragraph, we do not warrant that this website will be constantly available, or available at all, or the information on this website is complete, true, accurate or non-misleading. This also applies to Third-Party Sites and Third Party Content.
This website is provided “as is” without any representations or warranties, express or implied. We make no representations or warranties in relation to this Website or the Content, information and materials provided on this Website, including the truth or accuracy of the analysed data.
Nothing in this agreement excludes liability for death or personal injury caused by fraud, fraudulent misrepresentation or negligence, nor any breach of Section 2 of the Supply of Goods and Services Act 1982 or Section 12 or the Goods Act 1979 or any other rights that cannot be excluded as a matter of law.
We agree to indemnify you, your affiliates, licensors, subsidiaries, assignees including their employees, directors and/or officers against all actions, proceedings, claims, costs (including expenses and legal), expenses and liabilities of every description arising from the exercise or the purported exercise in good faith of any of the Services or Terms and notwithstanding that they may have arisen as a result of a lack of care on the part of such person. This does not apply if your use of our Service is not in accordance with these Terms, or you have modified our Services in any way without prior written consent, or we have acted within the scope or your guidelines, instructions, plans, designs of specifications or as a result of your continued Use of Our Services after notification of infringement or after a request to halt Use of our Services.
If any Third-Party claims that Our Services infringe their IP or copyright rights, we will defend you against any claim and pay for all awarded damages through settlement or judgement if you promptly notify us in writing, and allow us sole control of the settlement and/or defence, provide us full cooperation, and make commercially reasonable efforts to mitigate losses. In providing the settlement and/or defence of any claim relating to intellectual property or copyright indemnity we may modify or replace any infringing Services so they become non-infringing, or procure rights so that you may continue to use the Services, or if those remedies are not available to us then we may terminate this Agreement in part or in whole with 30 days written notice to you and fully refund to you any unamortised pre-paid fees covering the remainder of your Term of the terminated services.
You agree to indemnify us, our affiliates, licensors, subsidiaries, assignees including their employees, directors and/or officers against all actions, proceedings, claims, costs (including expenses and legal), expenses and liabilities of every description arising from the exercise or the purported exercise in good faith of any of the Services or Terms and notwithstanding that they may have arisen as a result of a lack of care on the part of such person.
Following the execution of this Agreement, you agree to participate in a press release naming you as Our customer and stating that you are using our Services, and that we can use your logo and name without endorsement in our customer list, sales materials, on the Website and in the use of its Services. You shall also use your best endeavours to participle in promotional activities and in case studies with prior written notice.
In the event of any disagreement, both parties will use their best endeavours to seek a good faith and amicable resolution.
Headings are for ease of reference only.
Provision of Our Services shall not create any relationship of agent and principal between you and us and neither you nor us have any power or authority to contract or to bind in the name of the other Party.
It is the Parties’ express intention that the relationship of Brand Brain to you shall be that of an independent contractor and not that of an employee. At no time shall you hold yourself out as being a director or employee of Brand Brain or any group company.
No provision of these Terms is intended to be enforceable by any person other than you or us.
Each party shall be responsible for complying with all laws in relation to this Agreement.
Any failure by you or us to exercise any remedy or rights under these Terms does not constitute a waiver of that remedy or those rights.
Transfer, assignment or sub-contraction of your rights to any entity or Third-Party must not be done without our prior written or emailed consent.
If you are a Customer, we reserve the right, without your consent, but with notice, to sub-contract or transfer any of our obligations stated in these Terms to any entity or Third-Party including in the event of a merger or acquisition. If you are a visitor to our Site then we reserve the right, without your consent to sub-contract or transfer any of our obligations stated in these Terms to any entity or Third-Party.
Any provision of this Agreement which is held invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective only to the extent of such invalidity or unenforceability and without rendering invalid or unenforceable the remainder of this Agreement or affecting the validity or enforceability of any of the provisions of this Agreement in any other jurisdiction, and the court or tribunal so holding shall be empowered to substitute, to the extent enforceable, provisions similar to said provision, or other provisions, so as to provide to the Parties the benefits intended by said provision to the fullest extent permitted by Applicable Law.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
The construction, validity and performance of these Terms shall be governed in all respects by English law and you and us submit to the exclusive jurisdiction of the English courts in respect of any dispute relating to these Terms which also exclude the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Both parties waive any rights to a jury trial for all legal proceedings occurring as a result of this Agreement.
Communication and notices, including legal notices, will be sent by us to you via email to the email address on the Digital Order Confirmation and any other email addresses provided by you. If you send us legal notices, then they are to be sent to [email protected].
In relation to the transactions contained in this Agreement, neither you nor any related parties has made, offered or authorised or will make, offer or authorise any payment, gift, promise or other advantage, whether directly or through any other person or entity, to or for the use or benefit of any Government Official or any entity or other person where such payment, gift, promise or other advantage would (i) comprise a Facilitation Payment; or (ii) violate the Anti-Bribery and Money-Laundering Laws and Obligations or any other Applicable Law.
A party will not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it promptly notifies the other of the Force Majeure event and its expected duration, and uses reasonable endeavours to minimise the effects of that event. If, due to Force Majeure, a party is unable to perform a material obligation, or is delayed in or prevented from performing its obligations for a continuous period of more than sixty (60) days, the other party may, within a further ten (10) days terminate this Agreement on notice, otherwise this Agreement shall continue in full force and effect.
These Terms constitute the entire agreement between us regarding our Site and our Services, and replaces and supersedes any prior agreements we might have between us regarding the Site or our Services including prior written and oral agreements or proposals, other than those made fraudulently. This Agreement supersedes the Digital Order Confirmation, or our SLA unless where these Terms conflict with respects to the Services being delivered in those Agreements, when they will be covered by the Digital Order Confirmation or SLA. Any alteration to these Terms must be agreed upon and signed by authorised representatives of both parties.
This document was last updated on January 20th, 2019