Terms of Service

2.1 Provision of Ballet Product And Service

Subject to the terms and conditions of this Agreement, Brainfish will (i) make the Ballet Product and any Services available to Customer pursuant to these Terms of Service, and hereby grants Customer a limited, non-transferable, non-exclusive right to access and use the Service, and (ii) provide standard customer support to Users of the Service as provided for via the Ballet Website and Ballet Product.

2.2 Protection of Customer Content

Brainfish will maintain appropriate administrative, physical, technical safeguards for the protection, security and confidentiality of Customer Content, which will include customary safeguards and measures designed to prevent unauthorized access to or usage of Customer Content (other than by Customer’s Users).

2.3 Beta Products

From time-to-time, Brainfish may make Beta Products available to you at no charge. You may choose to try such Beta Products or not in your sole discretion. You agree that any such use of Beta Products by you will be provided “AS-IS” with no representations or warranties and that Brainfish will have no liability to you or any Users based on your usage of any such Beta Products and you hereby waive any and all potential claims against Brainfish in connection with your usage of any Beta Products. Brainfish may cease providing a Beta Product at any time.

3.1 Customer Limitations

The license rights granted herein to you are subject to the following restrictions (the “License Restrictions”). You agree you will not directly or indirectly:

1. (a)

   reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create, or derive, or permit or assist any third party to create or derive, the source code underlying the Ballet Product (or any Beta Products);

2. (b)

   attempt to probe, scan or test the vulnerability of Ballet Product (or any Beta Product), breach the security or authentication measures of the Ballet Product (or any Beta Product) without proper authorization or willfully render any part of the Ballet Product (or any Beta Product) unusable;

3. (c)

   use or access the Ballet Product (or any Beta Product) to develop a product or service that is competitive with any Ballet products/services;

4. (d)

   use the Ballet Product (or any Beta Product) to store, use or transmit any infringing, libelous or otherwise unlawful content or data or to store, use or transmit any material in violation of any third-party privacy rights or applicable laws;

5. (e)

   transfer, distribute, resell, lease, license, or assign Ballet Product (or any Beta Product) or otherwise offer the Ballet Product (or any Beta Product) on a standalone basis;

6. (f)

   frame or mirror any part of the Ballet Product (or any Beta Product); or

7. (g)

   otherwise use the Ballet Product (or any Beta Product) outside the scope expressly permitted under these Terms of Service.

3.2 Customer Responsibilities

1. (a)

   You will (i) be responsible for all use of the Ballet Product (or any Beta Product) under your account (whether or not authorized) by you and your Users, (ii) use reasonable efforts to prevent unauthorized access to or use of the Ballet Product (or any Beta Product) and notify Brainfish promptly of any such unauthorized access or use, (iii) use the Ballet Product (or any Beta Product) in accordance with these Terms of Service and applicable laws and regulations, and (iv) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Service (or any Beta Product). You will be solely responsible for your failure to maintain such equipment, software, and services, and Brainfish will have no liability for such failure. In addition, you are responsible for ensuring that your systems have sufficient bandwidth to use the Ballet Product (or any Beta Product).

2. (b)

   You are responsible for the accuracy, quality and legality of the Customer Content you provide in connection with your use of the Ballet Product, your right to use any Customer Content or input, store or use such Customer Content within the Ballet Product (or any Beta Product), and the means by which you obtain or acquire such Customer Content and all necessary rights thereto.

3. (c)

   Any use of the Ballet Product (or any Beta Product) by you (or your Users) in violation of the above terms that in Brainfish’s sole judgment (i) threatens the security, integrity or availability of the Ballet Product, (ii) violates applicable laws or Customer’s obligations hereunder or (iii) may create reputational or other risks to Brainfish and its business, may result in the immediate suspension of Customer’s usage of the Ballet Product in Brainfish’s sole discretion.

3.3 Customer Content

1. (a)

   Customer Content Generally. Certain features of the Service may permit you (and your Users) to submit, use, upload, or otherwise transmit Customer Content to the Service. Customer retains any and all copyright and other proprietary rights that Customer may hold in the Customer Content that Customer posts to or uses with the Service, subject to the licenses granted in these Terms of Service. By providing Customer Content to or via the Service, Customer authorizes Brainfish to use it to provide the Service to you (and your Users).

2. (b)

   Customer’s Rights to the Customer Content. You will not provide any Customer Content if you are not the owner of, or not fully authorized to grant rights in all of the elements of that Customer Content. Brainfish disclaims any and all liability in connection with Customer Content. By providing Customer Content via the Service, you represent that:

   1. (i)

      You are the creator and owner of the Customer Content, or have the necessary licenses, rights, consents, and permissions to authorize Brainfish to use and distribute Customer Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Brainfish, the Service, and these Terms of Service.

   2. (ii)

      The Customer Content, and the use of Customer Content as contemplated by these Terms of Service, do not and will not: (A) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) cause Brainfish to violate any law or regulation or require Brainfish to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties, and

   3. (iii)

      The Customer Content could not be deemed by Brainfish to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.

3. (c)

   Customer Content Disclaimer. Brainfish has no obligation to edit or control Customer Content that you (or your Users) use with the Ballet Product and will not be in any way responsible or liable for Customer Content. Brainfish may, however, at any time and without prior notice, screen, remove, edit, or block any Customer Content that Brainfish determines in its sole judgment violates these Terms of Service, is alleged to violate the rights of third parties, or is otherwise objectionable. If notified by a third party or content owner that Customer Content allegedly does not conform to these Terms of Service, we may investigate the allegation and determine in Brainfish’s sole discretion whether to remove the Customer Content, which Brainfish reserves the right to do at any time and without notice.

4. (d)

   No Sensitive Personal Information. You specifically agree not to use the Service to collect, store, process or transmit any Sensitive Personal Information. You are exclusively responsible for any Sensitive Personal Information you (or your Users) submit to the Service, and Customer acknowledges that Brainfish is not subject to any additional obligations that may apply to any Sensitive Personal Information submitted to the Service, including any obligations under any applicable laws associated with such Sensitive Personal Information. “Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); (iii) social security numbers, passport, driver licenses, other forms of identification, or (iv) any other personal data of an EU citizen deemed to be in a “special category” (as identified in EU General Data Protection Regulation or any successor directive or regulation).

5. (e)

   Monitoring Customer Content. Brainfish does not control and does not have any obligation to monitor: (a) Customer Content; (b) any content made available by third parties; or (c) the use of the Service by you or your Users. You acknowledge and agree that Brainfish reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service. If at any time Brainfish chooses to monitor Customer Content, then Brainfish still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with these Terms of Service and Brainfish’s Privacy Policy. Brainfish may block or filter any Customer Content uploaded to or transmitted through the Service without any liability to you (or any User who provided such Customer Content to the Service).

4.1 Account Access

To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, you must immediately notify us at [email protected].

4.2 Fees

Customer will pay Brainfish the fees, including any consumption based fee (e.g., credits), as set forth on the Ballet Website if the Customer subscribes to the Service via the Ballet Website (collectively, the “Fees”). Fees are quoted and payable in United States dollars (unless otherwise specified on the Ballet Website) and payment obligations are non-cancelable, non-pro-ratable for partial months, and Fees paid are non-refundable. Brainfish will make reasonable efforts to keep pricing information published on the Service up to date on the Ballet Website. We encourage you to check our pricing page on the Ballet Website periodically for current pricing information. Brainfish may change the Fees for any feature of the Service, including additional fees or charges, if Brainfish gives you advance notice of changes before they apply through the Service user interface, a pop-up notice, email, or through other reasonable means. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. You will be responsible for all taxes associated with the Service, other than taxes based on Brainfish’s net income. Brainfish, at its sole discretion, may make promotional offers with different features and different pricing to any of Brainfish customers. These promotional offers, unless made to you, will not apply to your offer or these Terms of Service. Any renewal of promotional or one-time priced Service subscriptions will be at Brainfish’s applicable list price in effect at the time of the applicable renewal as provided on the Ballet Website.

4.3 Ballet Product Consumption Based Pricing

The subscription to the Ballet Product includes a defined level of usage capacity. This capacity is administered through a flexible credit framework designed to support a range of activities within the Ballet Product. If usage requirements exceed the included capacity for the subscription to the Ballet Product as provided for on the Ballet Website, you may expand your subscription through the purchase of additional capacity by purchasing more credits or by upgrading to a higher subscription tier. You agree that once you exceed your credits for the Ballet Product, that Brainfish may automatically charge you for increased credits to allow for continued access to and usage of the Ballet Product. If you exceed your credits for the Ballet Product, you understand you will no longer be able to initiate new workflows within the Ballet Product until you purchase additional credits.

4.4 Subscription Service

The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, then you authorize Brainfish or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. Information on the recurring fee charged by Brainfish for access to the Subscription Service during each Subscription Period (“Subscription Fee”), is available on the Ballet Website, or otherwise described in these Terms of Service. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service at least 24 hours before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Brainfish or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service by using the cancellation functionality made available in the Ballet Website or by contacting us at [email protected]. YOUR CANCELLATION MUST BE RECEIVED BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.

4.5 Payment

You will provide Brainfish with a valid and updated debit or credit card through its payment processor to charge you for your subscription to the Service. If your payment method ceases to work at any time, you understand that you will not be able to increase your credits to use the Ballet Product and your access and usage of the Ballet Product will be impacted.

5.1 Reservation of Rights

Subject to the limited rights granted to you hereunder, Brainfish reserves all of its rights, title, and interest in and to the Ballet Product (including any Beta Products) and Services and its Confidential Information, including any and all intellectual property rights therein. No rights are granted to you, except as expressly provided in these Terms of Service.

5.2 Proprietary Rights

As between the parties, Brainfish exclusively owns all right, title, and interest in and to the Ballet Product (including any Beta Product), Services and Brainfish’s Confidential Information, and Customer exclusively owns all right, title, and interest in and to the Customer Content. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Brainfish (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Brainfish or its third-party licensors.

5.3 Usage Data

Brainfish may collect, generate, store, use and derive Usage Data for Brainfish’s lawful business purposes, including, to: (1) monitor, operate, improve, customize, modify and support the Service and its performance, security, and stability; (2) create analytics, benchmarking, and performance data and reports; and (3) develop new products and services. Brainfish owns all right, title, and interest, including all intellectual property rights in and to, the Usage Data, the know-how and analytical results generated in the processing and use of Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to the Service made based on the Usage Data. Brainfish will not disclose Usage Data externally, including in benchmarks or reports, unless such Usage Data has been (a) de-identified so that it does not individually identify Customer or any other person and (b) aggregated with usage data from other users of the Service. Customer’s Content will not be used to train any LLM Provider’s artificial intelligence models, unless specifically agreed to by Customer.

5.4 Feedback

You (and your Users) may from time to time provide Brainfish suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Service (including Ballet Product and any Beta Product). Brainfish will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features, or functionality. Brainfish will have the full, unencumbered right, without any obligation to compensate or reimburse you (or your Users), to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

5.5 Ballet Product Output

Brainfish hereby grants and assigns to you all ownership rights, title, interest and licenses that Brainfish may have under applicable law to any and all Ballet Product Output created, distributed, published or transmitted in connection with Customer’s usage of the Service as contemplated under these Terms of Service. Brainfish may use Ballet Product Output and Usage Data as necessary to provide, maintain and improve the Service, as permitted under the Brainfish privacy policy and in accordance with applicable laws and Brainfish policies and procedures meant to protect, maintain and improve the Ballet Product.

5.6 Confidentiality

You agree to use Brainfish Confidential Information solely in accordance with the provisions of these Terms of Service and you will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without Brainfish’s prior written consent, except as otherwise permitted in these Terms of Service. However, you may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors, contractors, vendors and other representatives who are required to keep such information confidential; and (b) as required by law, in which case you will provide Brainfish with prior written notification thereof, will provide Brainfish with the opportunity to contest such disclosure, and will use commercially reasonable efforts to minimize such disclosure to the extent permitted by applicable law. You agree to exercise reasonable due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of an actual breach of the provisions of this Section, Brainfish will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. You will promptly notify Brainfish in writing if you become aware of any violations of the confidentiality obligations set forth in this Agreement.

6.1 Third-Party Services and Linked Websites

Brainfish may provide tools through the Service that enable you to export or share information, including Customer Content, to third-party services (including LLM Providers). By using one of these tools, Customer hereby authorizes Brainfish to transfer that information to the applicable third-party service. Third-party services are not under Brainfish’s control, and, to the fullest extent permitted by law, Brainfish is not responsible for any third-party service’s use of exported or shared Customer Content. The Service may also contain links to third-party websites. Linked websites are not under Brainfish’s control, and Brainfish is not responsible for their content.

6.2 Third-Party Platforms

Customer may elect to use or integrate platforms, add-ons, services, or products not provided by Brainfish (“Third-Party Platforms”) subject to your agreement with the relevant provider and not these Terms of Service. Brainfish does not control nor shall Brainfish have liability for such Third-Party Platforms integrations, including their security, functionality, operation, availability, or interoperability with the Service (including the Ballet Product) or how they or their providers use Customer Content. By enabling a Third-Party Platform to interact with the Service, Customer permits the Service to exchange Customer Content with such Third-Party Platform. Brainfish cannot guarantee the continued availability of such integrations with Third-Party Platforms.

7.1 DISCLAIMERS

BRAINFISH DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THE BALLET PRODUCT IS PROVIDED TO YOU “AS-IS.” YOU ACKNOWLEDGE THAT THE BALLET PRODUCT IS BASED ON ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING, AND IS INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, YOUR BUSINESS NEEDS, DECISIONS OR HUMAN RISK ASSESSMENT. THE BALLET PRODUCT MAY CONTAIN BUGS AND BRAINFISH CANNOT GUARANTEE THAT THE SERVICE WILL BE ERROR FREE OR THAT THE SERVICE WILL BE AVAILABLE AT ALL TIMES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY BRAINFISH ENTITIES OR ANY MATERIALS, CONTENT OR BALLET PRODUCT OUTPUT AVAILABLE THROUGH THE SERVICE, INCLUDING ANY RECOMMENDATIONS OR SUGGESTIONS, WILL CREATE ANY WARRANTY REGARDING ANY OF THE BRAINFISH ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. YOU AGREE THAT YOU USE THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT BRAINFISH IS NOT RESPONSIBLE FOR ANY RESULTS OR HOW YOU USE THE SERVICE. YOU ARE ADVISED NOT TO RELY EXCLUSIVELY ON THE INFORMATION OR BALLET PRODUCT OUTPUT IN CONNECTION WITH YOUR USE OF THIS SERVICE FOR CRITICAL BUSINESS OR TECHNICAL DECISIONS AND YOU SHOULD INDEPENDENTLY VERIFY THE ACCURACY OF ANY BALLET PRODUCT OUTPUT OR SUGGESTIONS.

7.2 BETA PRODUCTS

FROM TIME TO TIME, YOU MAY PARTICIPATE IN A PROGRAM WITH BRAINFISH WHERE YOU USE BETA PRODUCTS. THE BETA PRODUCTS ARE PROVIDED “AS IS”. BRAINFISH DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO ANY BETA PRODUCT AND BRAINFISH DISCLAIMS ALL LIABILITY RELATED TO YOUR USE OF ANY BETA PRODUCT.

7.3 Auto-Code Execution

The Service may include a feature that automatically executes code without manual review or confirmation. By not disabling this feature, you acknowledge and agree that you are assuming all risks associated with the execution of automatically generated code, including without limitation system outages, software defects, data loss, and security vulnerabilities. YOU ARE SOLELY RESPONSIBLE FOR ANY IMPACT RESULTING FROM USE OF THIS FEATURE, INCLUDING ENSURING APPROPRIATE SAFEGUARDS, TESTING, AND MONITORING ARE IN PLACE.

7.4 Limitations for Suggestions

You acknowledge that Suggestions are generated automatically by machine learning technology and may be similar to or the same as Suggestions provided to other customers, and no rights to any Suggestions generated, provided, or returned by the Service for or to other customers are granted to you under these Terms of Service. Further, you acknowledge that there are numerous limitations that apply with respect to Suggestions provided by large language and other AI models (each an “AI Model”), including that (i) Suggestions may contain errors or misleading information, (ii) AI Models are based on predefined rules and algorithms that lack the ability to think creatively and come up with new ideas and can result in repetitive or formulaic content, (iii) AI Models can struggle with understanding the nuances of language, including slang, idioms, and cultural references, (iv) AI Models can struggle with complex tasks that require reasoning, judgment and decision-making, and (v) data used to train AI models may be of poor quality or biased. You agree that you are responsible for evaluating, and bearing all risks associated with, the use of any Suggestions, including any reliance on the accuracy, completeness, or usefulness of Suggestions.

9.1 No Indirect Damages and Liability Cap

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL ANY BRAINFISH ENTITY BE LIABLE TO YOU UNDER THESE TERMS OF SERVICE OR IN CONNECTION WITH YOUR USE OF THE SERVICE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE THREE (3) MONTHS PRECEDING THE INCIDENT OR CLAIM. THE FOREGOING LIMITATIONS ARE ESSENTIAL TO THESE TERMS, AND WE WOULD NOT OFFER THE SERVICE TO YOU UNDER THESE TERMS OF SERVICE WITHOUT THESE LIMITATIONS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

9.2 Limitations Period

You and Brainfish agree that you must initiate any proceeding or action asserting a federal claim within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute that is arising out of or related to these Terms of Service or the Service, or if such limitation period is unenforceable under applicable law, then the shortest limitation period permitted by applicable law. You and Brainfish agree that you must initiate any proceeding or action asserting a state law claim within two (2) years of the date of the occurrence of the event or facts giving rise to a dispute that is arising out of or related to these Terms of Service or the Service. Otherwise, to the extent permitted by applicable law, you forever waive the right to pursue any claim or cause of action, of any kind or character, based on such events or facts, and such claims or causes of action are permanently barred.

10.1 Termination

You may stop accessing the Service at any time. We reserve the right to modify, suspend, or discontinue the Service or your access to the Service, in whole or in part, at any time without notice to you. Although we will strive to provide you with reasonable advance notice if we stop offering a Service, there may be urgent situations, such as preventing abuse or addressing security issues or responding to legal requirements, where providing advance notice is not feasible. We will not be liable for any change or any suspension or discontinuation of the Service or your access to them. If you have a Subscription Service, we may terminate the Subscription Service at any time for any other reason. If we exercise this right, we will refund you on a pro rata basis the fees you paid for the remaining portion of your Subscription Service after termination, provided that if we terminate your access to the Service due to a violation of these Terms of Service, you will not be entitled to any refund. We also may terminate your account if it has been inactive for over a year and you do not have a paid account. If we do, we will provide you with advance notice. Upon termination of these Terms of Service, a Subscription Service, or your access to the Service, we may at our option delete any Customer Content, Ballet Product Output, or other data associated with your account. If you believe we have suspended or terminated your account in error, you can file an appeal with us by contacting us at [email protected].

10.2 Deletion and Export of Customer Content & Ballet Product Output

You agree that we can delete all Customer Content and Ballet Product Output which resides within the Ballet Product or otherwise at any time after termination of these Terms of Service and your subscription of the Service. If Customer notifies Brainfish in writing within thirty (30) days of termination or expiration of the applicable Order Form, that it wishes to export or download Customer Content, Brainfish will allow Customer to export or download its Customer Content for a period of thirty (30) days after such written notice, provided access to the Ballet Product during such period will be limited to downloading and exporting Customer Data in accordance with the manner permitted by Brainfish.

10.3 Survival

Upon termination of these Terms of Service and/or access to the Service, all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the license restrictions and terms and conditions relating to proprietary rights, data/content rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.

10.4 Delinquent Accounts

Brainfish may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid or due to violation of any of the Terms of Service. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal Subscription Fee is due, then Brainfish reserves the right to delete your account and any information associated with your account without any liability to you.

11.1 Governing Law, Forum Selection, Jurisdiction, and Venue

Unless prohibited by your country’s applicable law, the laws of the State of California, excluding its choice of law provisions, will govern these Terms of Service and any dispute that arises between you and Brainfish, notwithstanding any other agreement between you and us to the contrary. Notwithstanding any other agreement to the contrary, unless prohibited by your country’s applicable law, all disputes related to these Terms of Service and the Service, including without limitation disputes related to or arising from any Customer Content (whether your or others' content), or your or others' use of the Service or the complete or partial termination thereof – shall be brought and must proceed exclusively in the federal or state courts located in San Francisco, California, United States, and you and Brainfish consent to personal jurisdiction in those forums and waive any objection as to inconvenient forum. For the avoidance of doubt, the choice of law and forum selection provisions of this paragraph shall apply regardless of whether a dispute or any claims contained therein are based in contract, tort, statute, common law, or otherwise, and the choice of law and forum selection provisions of this paragraph shall apply to pending and future disputes and shall apply to your dispute regardless of when the conduct relating to the dispute arose or occurred. The choice of law and forum selection provisions of this paragraph shall also extend to disputes involving our U.S. corporate affiliates, who consent to and are intended third-party beneficiaries of this paragraph.

11.2 Prohibition of Class and Representative Actions and Non-Individualized Relief

YOU AND BRAINFISH AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND BRAINFISH AGREE OTHERWISE, YOU AND BRAINFISH AGREE NOT TO SEEK TO CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND NOT TO OTHERWISE SEEK ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, YOU AND BRAINFISH AGREE TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU AND BRAINFISH MAY PURSUE A CLAIM FOR PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.

11.3 Dispute Resolution

Brainfish is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing [email protected]. In the event of a dispute, claim or controversy relating to these Terms of Service and the Service (“Dispute”), you and Brainfish agree to first attempt in good faith to informally resolve the matter. You must notify Brainfish of such dispute in writing with a description and nature of the dispute (“Dispute Notice”) and Brainfish will have thirty (30) days from the date of delivery of the Dispute Notice to propose a time for you to meet (including via virtually) to attempt to resolve the Dispute. If you and Brainfish have not resolved the Dispute within forty-five (45) days of delivery of the Dispute Notice, then you may seek to resolve the dispute through litigation as contemplated herein.

13.1 Modification of Terms

We may, from time to time, change these Terms of Service. Please check these Terms of Service periodically for changes. If we make any material modifications, we will notify you by updating the date at the top of these Terms of Service and by maintaining a current version of these Terms of Service on this page. All modifications will be effective when they are posted, and your continued accessing or use of the Service will serve as confirmation of your acceptance of those modifications. If you do not agree to the modified Terms of Service, then you must discontinue your use of the Service.

13.2 Export Compliance

You must comply with all applicable trade laws, including sanctions and export control laws. The Service may not be used in or for the benefit of, or exported or re-exported to (a) any U.S. embargoed country or territory or (b) any individual or entity with whom dealings are prohibited or restricted under applicable trade laws. Our Service may not be used for any end use prohibited by applicable trade laws, and your Input may not include material or information that requires a government license for release or export.

13.3 Publicity

Customer agrees that Brainfish may refer to Customer’s name and trademarks in Brainfish’s marketing materials and website.

13.4 Consent to Electronic Communications

By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by using any unsubscribe or similar functionality or instructions in the promotional email.

13.5 Assignment; Delegation

You may not assign or otherwise transfer these Terms of Service, in whole or in part, without Brainfish’s prior written consent. Any attempted assignment, delegation, or transfer by you in violation hereof will be null and void. Subject to the foregoing, these Terms of Service will be binding on your successors and assigns.

13.6 Relationship

Nothing contained herein will in any way constitute any association, partnership, agency, employment, or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish such relationship.

13.7 Unenforceability

If a court of competent jurisdiction determines that any provision of these Terms of Service is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of these Terms of Service will remain in full force and effect and bind the parties according to its terms.

13.8 Entire Agreement

These Terms of Service (including our Privacy Policy) and any other agreements expressly incorporated into these Terms of Service comprise the entire agreement between Customer and Brainfish with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Brainfish, its agents, or employees will create a warranty or in any way increase the scope of the warranties in these Terms of Service.

13.9 Contact Information

You may contact us by sending correspondence to Brainfish Inc., 575 Market St, Level 4, San Francisco CA 94105, or by emailing us at [email protected].