Terms of Service
Effective: July 1, 2021
Thank you for singing up for a service with Bragona Technologies (“Bragona”, “we”,”us”). By creating an account, clicking to accept this agreement (or another click-through mechanism provided), signing an order form referencing these terms, or accessing or using the Bragona Services (as defined below), you agree to all the terms and conditions of this Terms of Service (this “Agreement”). If you are accepting this Agreement and using the Bragona Services on behalf of your employer or other entity, then “Customer” or “you” means that entity. Further, if you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind such entity to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree to this Agreement on behalf of the party that you represent. Please note that Bragona may modify this Agreement as further described in the Modifications section below, so you should make sure to check this page from time to time.
- Bragona Services
- Service Generally. The “Bragona Services” comprise a suite of software-as-a-service-based data analytics and graphic information representation products and tools, accompanied by additional services, such as: customization, optimization, training and educational events, community building and networking, legal services (“Additional Services”), some, or all of which Customer may elect to receive, that enable customers to analyze, process business data for higher performance from analytical queries. The Bragona Service is to be delivered to Customer by choosing the relevant subscription plan: Basic, Standard, Pro. Each plan includes a set of technical modules and some of Additional Services. Some of the Additional Services may be ordered by Customer on top to the existing subscription plan. Bragona will make those Bragona Services elected by you and agreed to by Bragona, on a mutually executed order form, available to you in accordance with the terms of this Agreement.
- Third Party Applications. In some circumstances, Customer may integrate with the Bragona Services through an approved third-party application, such as: GitHub, GitLab, Slack, Greppo, Jira Integrations, Leaf Notes, Microsoft Teams, Trello, Quest Testing, Markdown Editor, Bitbucket, via an extension or connector (“Third-party App”), or Customer may authorize Bragona to connect the Bragona Services to certain Third-party App and platforms utilized by Customer in connection with its business (“Customer Providers”). Customer acknowledges and agrees that (a) the services of such Third-party Apps and Customer Providers do not form part of the Bragona Services and (b) the Third-Party Apps and Customer Providers are service providers of Customer and not Bragona. Customer’s use of the Third-party App or Customer Provides in connection with the Bragona Services may be subject to a separate written agreement between Customer and Bragona. Bragona disclaims all liability and responsibility for any Third-party App or Customer Provides or for the acts or omissions of such Third-party App or Customer Provides.
- Analytic Results. Based on Bragona’s modeling and analysis of the Customer Data alone and in combination with other data in the Bragona Services, Bragona will provide Customer with proprietary results, which include but not limited by recommendations, forecasts, summaries, graphical illustrations of the processed data, such as graphs, charts, images and videos (collectively, the “Analytical Results”) for Customer’s use in accordance with the terms of this Agreement.
- Non-compliance. Subject to obligations of confidentiality, where a party has a concern that the other party has not complied with this Agreement, the parties agree to exchange information to ascertain the cause of such non-compliance and take reasonable steps to remediate such non-compliance.
- Customers Clients. If Customer is entering into this Agreement and using the Bragona Services for the benefit of its clients (each, a “Client”), Customer agrees to, prior to any such use of the Bragona Services, enter into and maintain a written agreement with each Client that binds each Client with respect to all the terms set forth in the Client Pass-Through Addendum included at the end of this Agreement as Exhibit A (the “Pass-Through Terms”). Customer further represents, warrants, and covenants that each such agreement will contain data protection addendums that comply with applicable data protection laws, and will appoint Customer as a service provider on behalf of the Client. Customer acknowledges and agrees that, as between the parties, it is solely responsible for and will be liable: (i) for the actions or omissions of any Client in connection with the Bragona Services and (ii) for ensuring compliance with this Agreement by such Clients. Any breach or violation of this Agreement by a Client will be deemed a breach of this Agreement by Customer. To the extent Customer is using the Bragona Services for the benefit of its Clients, “Customer Data” includes any data Customer submits, uploads, or otherwise sends to Bragona on behalf of its Clients, and “Customer Properties” includes any Client services and digital applications or properties (e.g., webpages, apps, endpoints) from which Customer Data is collected and submitted, uploaded, or otherwise sent to Bragona.
- Proprietary Rights.
- Ownership of and Limited License to Customer Data. As between Bragona and Customer, Customer owns and retains all rights, title, and interest in and to its Customer Data. Customer grants to Bragona a limited, royalty-free, non-exclusive, worldwide right and license to access, collect, use, process, store, copy, and create derivative works from the Customer Data only as set forth in this Agreement.
- Use of Customer Data. Customer acknowledges and agrees that Bragona may use the Customer Data for as long as reasonably necessary for the limited purpose of providing, maintaining, and improving the Bragona Services, which includes improving its machine learning algorithms and data models as necessary to support such uses (the “Permitted Purpose”).
- Ownership of and Limited License to Bragona Services and Analytical results. Bragona owns and retains all rights, title and interest in and to the Bragona Services, including the Software, Documentation, and Analytical Results. Bragona grants to Customer a limited, royalty-free, exclusive, worldwide right and license to access and use the Bragona Services, including the Software, Documentation and Analytic Results, only as set forth in this Agreement. The license defined by this section might be non-exclusive in case if Customer uses the Bragona Services for the benefit of its clients. The type of the license is defined in Order form.
- Feedback. If Customer (including any Authorized User) provides Bragona any feedback in connection with the Bragona Services, Customer shall use reasonable efforts to ensure the accuracy of such feedback and grants Bragona an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer or any Authorized User.
- Aggregated Data. Customer acknowledges and agrees that Bragona may use data derived from Customer Data about Customer’s use of the Bragona Services that is aggregated with comparable data received from other customers (“Aggregated Data”) for Bragona’s internal purposes such as operating, maintaining and improving the Bragona Services. For absolute clarity, such Aggregated Data shall not be reasonably capable of identifying any underlying individual nor the Customer as a source of any Aggregated Data. Bragona will make no attempt to reidentify the Aggregated Data nor to use the Aggregated Data for any purpose other than purposes defined above.
- Beta Services. From time-to-time Bragona may invite Customer to try features or pre-released versions of the Bragona Services that are not generally available to customers for non-production use (“Beta Services”). Customer may accept or decline such invitation in its sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Customer’s use of Beta Services will be for the term specified by Bragona and if no term is specified, then for the earlier of one year from the start date of the Beta Services or when that version of the Beta Services becomes generally available, and therefore part of the Bragona Services. Bragona may discontinue Beta Services at any time in Bragona’s sole discretion and may never make them generally available. Notwithstanding anything to the contrary, the Beta Services are provided “as is” without any warranty of any kind. Bragona hereby disclaim all liability for any harm or damage arising out of or in connection with any beta service.
- Bragona Commitments.
- Compliance with Applicable Law. Bragona will comply with all laws, rules, and regulations applicable to the Bragona Services, including but not limited to those relating to privacy, data protection, and data security (“Applicable Laws”) in connection with its provision of the Bragona Services.
- Security and Data Protection. Bragona will maintain a security program with administrative, technical, organizational and physical security measures designed to protect Customer Data against unauthorized access, disclosure and loss. If the parties enter into any separate agreement or addendum concerning data protection (“DPA”), then such terms will be governed by this Agreement and, in the event of any conflict between such and this Agreement, this Agreement will prevail. To the extent the EU General Data Protection Regulation 2016/679 applies, Bragona and Customer are each data controllers of any personal data that Bragona processes in connection with the Bragona Services. To the extent Law No. (26) of 2015 Regulating Data Dissemination and Exchange in the Emirate of Dubai applies, Bragona is a data provider in connection with the Bragona Services.
- Deletion of Data. Upon termination of this Agreement, Customer may request deletion of the Customer Data. Subject to the provisions of Section 2.2. (Use of Customer Data), Bragona will perform such deletion within ninety (90) days except the certain types of information that Bragona is obliged to store in order to comply with Applicable Laws.
- Customer Commitments.
- Customer Responsibilities. Customer will use the Bragona Services (which, for clarity, include the Analytical Results) only: (a) for the purpose and in accordance with the terms of this Agreement, the Documentation, (b) in compliance with all Applicable Laws; and any contractual or other obligation Customer has to any third party. Customer is solely responsible for ensuring that its (or its Clients’, if applicable) use of the Bragona Services, including its provision of the Customer Data and use of Analytical Results, does not violate any Applicable Laws. Customer is solely responsible for any actions or decisions it makes in connection with its use of the Bragona Services and Bragona does not assume any responsibility or liability for such actions or decisions. If Customer’s Affiliates use Bragona Services, Customer warrants that it has the authority to bind those Affiliates to this Agreement and shall be fully liable for Customer’s Affiliates if such Affiliates do not comply with the terms and obligations set forth in this Agreement and any Order Form. “Affiliates” means, in respect to a party to this Agreement, any company or entity controlled by, controlling or under common control with such party. For this purpose, a party is deemed to “control” a company or entity if it (a) owns, directly or indirectly, at least 50 percent of the capital of the other company, or (b) in the absence of such ownership interest, substantially has the power to direct or cause the direction of the management and set the policies of such company or entity, whether through the ownership of voting securities or other ownership interests, by contract or otherwise.
- Usage Restrictions. Customer shall not: (a) make the Bragona Services available to anyone other than Authorized Users (or Clients, if applicable); (b) transfer, sublicense, resell, time share or similarly exploit the Bragona Services (except, if applicable, to the extent necessary for Clients to receive the benefit of the Bragona Services); (c) access the Bragona Services to build a competitive product or service; (d) reverse engineer, modify, adapt, or otherwise attempt to gain unauthorized access to the Bragona Services, or introduce any malicious code into the Bragona Service; (e) provide to Bragona any Customer Data that contains any sensitive information that shall not be provided to Bragona due to the course of the business relationship between Bragona and Customer; or (f) use the Bragona Services for purposes not contemplated by this Agreement.
- Customer Data, Privacy Notice. Customer is responsible for the accuracy and completeness of Customer Data that it transfers to Bragona, and shall ensure it has the right to transfer (or provide access to) Customer Data to Bragona for the purposes contemplated in this Agreement (and has obtained any necessary consents or authorizations to do so). Customer will only transfer, or provide access to Customer Data to Bragona that has been collected, processed and stored in accordance with its privacy notice and Applicable Laws. The parties will provide reasonable assistance and reasonably cooperate with each other to assist with each party’s compliance with Applicable Laws and this Section 4.4.
- Due Diligence and Remedial Action. Customer will conduct reasonable due diligence into any complaints or omissions Customer receives relating to the use of the Bragona Services, such as the Analytical Results made based on the provision of the Bragona Services to Customer. Customer will take appropriate action in response to such complaints or omissions (including by promptly providing feedback to Bragona through the Bragona Services) if Customer determines that such action is needed to correct the Analytical Results made based on the provision of the Bragona Services to Customer.
- Fees and Payment Terms. Unless otherwise agreed in writing by the parties, Customer will pay the fees stated on an applicable order form executed by Bragona and Customer (the “Fees”) within thirty (30) days of receipt of invoice. Bragona issues invoices on monthly basis pertaining to Order form that contains Services delivered to Customer due to the chosen subscription plan defined by Section 1.1., and separate invoices for each Additional Service that is not included in the chosen subscription plan. If Customer believes that Bragona has billed Customer incorrectly, Customer must contact Bragona no later than sixty (60) days after the invoice date in which the error or problem appeared, in order to receive an applicable adjustment or credit. Unless otherwise stated on an applicable order form, all Fees are non-cancelable and non-refundable. Monthly or annual minimum fees paid may not be rolled into any future time period. Bragona may charge interest on any unpaid amount due at the rate of one percent (1%) per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date it is paid. In the event Bragona pursues collection of any overdue Fees payable hereunder, Customer will reimburse all reasonable third-party costs and fees incurred by Bragona in connection with those collection activities. Customer shall be responsible for any payments owed but not paid by any of Customer’s Affiliates, or Clients ordering Bragona Services in any Order form.
- Taxes. The Fees do not include any local, state, federal, VAT/GST, sales, excise, use or other taxes, levies or duties of any nature, unless it is explicitly stated in a specific Order Form executed between the parties. Customer is responsible for paying any such taxes, excluding taxes based on Bragona’s income payable by Bragona without regard to the transactions contemplated by this Agreement. If applicable, Bragona reserves the right to gross up any Fees, if any required withholding prevents Bragona from receiving the full amount of the Fees.
- Definitions. As used herein, “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer shall include Customer Data, and Confidential Information of Bragona shall include the Software, the Analytical Results, all Documentation and the Beta Services. However, Confidential Information shall not include any information that the Receiving Party can document (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
- Confidentiality Obligations. Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall (a) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing or as necessary to fulfill Receiving Party’s data protection rights and obligations as described herein, to limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement.
- Mandated disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so; provided, the Receiving Party gives the Disclosing Party prior written notice of such compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the access or disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
Customer will defend, indemnify, and hold harmless Bragona, its officers, directors and employees against any third-party claim, demand, suit, investigation, or proceeding relating to any violation or alleged violation by Customer of the terms of this Agreement.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE BRAGONA SERVICES AND ALL RELATED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ANY PROMISES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, PERFORMANCE, TITLE, AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. BRAGONA DOES NOT REPRESENT THAT THE BRAGONA SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS OR THAT THE BRAGONA SERVICES OR ANALYTICAL RESULTS WILL BE ACCURATE OR COMPLETE. CUSTOMER ACKNOWLEDGES THAT, AS A SAAS-BASED SERVICE, THE FUNCTIONALITY, AND INTERFACES OF THE BRAGONA SERVICES MAY CHANGE OVER TIME, AND BRAGONA RESERVES THE RIGHT AT ANY TIME, AND FROM TIME TO TIME, TO MODIFY OR DISCONTINUE THE BRAGONA SERVICES (OR A PART THEROF).
- Limitation of Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR 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 DATA, OR FOR ANY AND ALL OTHER SIMILAR DAMAGES OR LOSSES, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL BRAGONA BE LIABLE TO CUSTOMER FOR ANY DAMAGES, COSTS, OR LIABILITIES IN AGGREGATE IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER IN THE TWELVE-MONTH PERIOD PRIOR TO THE CUSTOMER’S INITIAL CLAIM.
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
- Term and Termination.
- Term and Termination. The term of this Agreement will commence on the Effective Date and will continue so long as Bragona is providing Bragona Services to Customer under an applicable Order Form. Each Order Form shall identify the initial subscription period for the applicable Bragona service and unless otherwise stated on the applicable Order Form, such subscription periods shall automatically renew for additional (12) months unless either party provides written notice of its intent not to renew at least sixty (60) days prior to the end of the then-current subscription period. After the initial subscription period, if Bragona’s pricing increases, Bragona will give Customer at least sixty (60) days prior notice of the planned increases, with any increases taking effect the following renewal subscription period. Either party may terminate this Agreement immediately on written notice if (a) the other party commits any material breach of any term of this Agreement and has not cured such breach within fifteen (15) days of its receipt of written notice of the breach; or (b) the other party files for bankruptcy; becomes or is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it; makes an assignment for the benefit of all or substantially all of its creditors; or enters into an agreement for the cancellation, extension, or readjustment of substantially all of its obligations.
- Suspension of Bragona Services. Notwithstanding any provision herein to the contrary, Bragona may temporarily suspend the Bragona Services in the event of any activity by Customer or any of its Authorized Users, or its Clients that has (or in Bragona’s reasonable assessment is likely to have) an adverse effect on the operation of the Bragona Services.
Bragona may also temporarily suspend the Bragona Services in the event when Customer does not fulfill its payment obligations defined in Section 5.1. of this Agreement.
- Survival. The provisions of this Section and the following Sections will survive any termination of this Agreement: Section 2 (Proprietary Rights), Section 3.4 (Deletion of Data), Section 5 (Payment), Section 6 (Confidentiality), Section 7 (Indemnification), Section 8 (Disclaimer), Section 9 (Limitation of Liability) and Section 11 (General Provisions).
- General Provisions.
11.1. Marketing. Customer grants Bragona the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on Bragona’s website and in other public or private communications with existing or potential Bragona customers.
11.2. Force Majeure. Both parties shall not be liable hereunder by reason of any failure or delay in the performance of their mutual obligations due to events beyond the reasonable control of such party, which may include denial-of-service attacks, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
11.3. No Agency. Nothing herein will be construed to create a partnership, joint venture or any type of agency relationship between Bragona and Customer.
11.4. Notices. Marketing and business-related notices may be delivered by email. Any legal notices relating to this Agreement must be in writing and sent to each party its then-current primary place of business or such other address provided by the recipient. All notices will be sent by major commercial delivery courier service or mailed in a manner that requires signature by the recipient.
11.5. Governing Law and Venue. This Agreement and any disputes hereunder will be governed by the laws of the United Arab Emirates, without regard to its conflict of law principles, and any litigation concerning this Agreement will be submitted to and resolved by a court of competent jurisdiction in Dubai, the UAE. The United Nations Convention on the International Sale of Goods does not apply to this Agreement.
11.6. Export Control Laws. Each party shall comply with the UAE and foreign export control laws or regulations applicable to its performance under this Agreement. Without limiting the foregoing, both parties represent and warrant that (a) it is not listed on any government list, or is a prohibited or restricted party; (b) it is not subject to any United Nation, United Arab Emirates, European Union, or any other applicable economic sanctions or trade restrictions; and (c) it does not have operations in a country subject to comprehensive.
11.7. No Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including any order forms), without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8. Modifications. Bragona may modify the terms and conditions of this Agreement from time to time, in which case the modified version of this Agreement will supersede the prior versions. The most current version will always be posted on the Bragona website. Bragona shall use commercially reasonable efforts to provide Customer with advanced notification via email, posting a notice on the Bragona website or through the Bragona Service dashboard of any material modifications, with such modifications effective on the date of public posting. If Customer disagrees with the modifications, Customer’s exclusive remedy is to terminate the Agreement by providing thirty (30) days written notice to Bragona and cease using the Service. Customer’s continued use of the Bragona Services will be subject to the modified terms.
11.9. Severability. If any provision of this Agreement is held to be unenforceable, such provision will be reformed to the extent necessary to make it enforceable, and such holding will not impair the enforceability of the remaining provisions.
11.10. Waiver. The failure by a party to exercise any right hereunder or enforce strict performance of any provision of this Agreement will not waive such party’s right to exercise that or any other right in the future.11.11. Entire Agreement. This Agreement, any Order Form, and applicable DPA constitutes the entire agreement between the parties concerning the subject matter herein and supersedes any and all prior or contemporaneous communications and agreements whether written or oral concerning the subject matter hereof, including any previously executed non-disclosure agreement. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of the Order Form will take first precedence and the Agreement will take second precedence and the DPA will take third precedence, provided that any terms of an Order Form that conflict with this Agreement will take precedence solely in connection with those specific services set forth in such Order Form. Each party hereby acknowledges that no reliance is placed on any representation made but not referenced in this Agreement. No purchase order or other text that purports to modify or supplement the printed text of this Agreement will add to or vary the terms of this Agreement.