Terms of service

Briq Terms of Service.  THESE TERMS OF SERVICE APPLY TO ANY DOCUMENT OR AGREMENT (“AGREEMENT”) MADE BY AND BETWEEN BRIQ TECHNOLOGIES INC. (“briq”) AND ITS CUSTOMER (“CUSTOMER”) THAT INCORPORATES THESE TERMS OF SERVICE BY REFERENCE. REFERENCES TO THE “AGREEMENT” INCLUDES THESE TERMS OF SERVICE.

1. DEFINITIONS.  The following terms shall have the meanings set forth below:

“Ancillary Services” means implementation, training, consulting or other professional services that briq may perform as described in a SOW executed by the parties.

“briq Service” means those briq software-as-a-service offering(s) indicated on an applicable Order Form, but excludes any Open Source Software that may be used to provide such offering(s).

“Customer Data” means any and all information, data, software code, text, and other material transmitted or provided by Customer to the briq Service.

“Documentation” means the printed, paper, electronic or online user instructions and help files made available by briq for use with the briq Service, as may be updated from time to time by briq.

“Effective Date” is the date on which the Agreement becomes effective.

“Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, CC-BY-SA or any other license that approved by the Open Source Initiative (www.opensource.org) or under any “freeware,” “shareware,” or other similar licensing or distribution model.

“Order Form” means the ordering documents for Services purchased from briq that are executed hereunder by the parties from time to time, including modifications, supplements and addend thereto. Order Forms incorporate these briq Terms of Service.

“Services” means the services provided hereunder, including Ancillary Services, Support (as defined below) and access to the briq Service.

“Scope of Work” or “SOW” means a written scope of work entered into and signed by the parties describing Ancillary Services to be provided by briq to Customer.

“Subscription Term” means the subscription period for Customer’s use of the briq Service, as ordered via an Order Form.

“Third Party Offerings” means certain software or services delivered or performed by third parties that are required for the operation of the briq Service, or other online, web-based CRM, ERP, or other business application subscription services, and any associated offline products provided by third parties, that interoperate with the briq Service.

“Third Party Data” means information, data or content from third party licensors or publicly available sources and provided to Customer for use with the Services.

“User” means Customer’s employees, consultants, contractors, agents and third parties with whom Customer may transact business and (a) for whom Customer has purchased a subscription to access the briq Service during the Subscription Term pursuant to an Order Form, (b) who are authorized by Customer to access and use the briq Service, and (c) where applicable, who have been supplied user identifications and passwords for such purpose by Customer (or by briq at Customer’s request).

2. ORDERS, LICENSE AND RESTRICTIONS.

1. Orders.  Subject to the terms of this Agreement, Customer may purchase subscriptions for its designated Users to access and use the briq Service and other Services by executing one or more Order Forms.  Unless otherwise specified in the applicable Order Form, (a) the briq Service may be accessed by no more than the number of Users specified in the applicable Order Form, (b) an unlimited number of additional User subscriptions may be added at any time during the applicable Subscription Term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the Subscription Term in effect at the time the additional User subscriptions are added, and (c) the added User subscriptions shall terminate on the same date as the pre-existing User subscriptions.  Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by briq regarding any future functionality or features.
2. License Grant.  Subject to the terms and conditions of this Agreement (including payment of all applicable fees), and during the relevant Subscription Term, briq hereby grants to Customer, a limited, non-exclusive, non-transferable license (without the right to sublicense) to access and use the briq Service for its internal business use only.  Customer’s use of the briq Service may be subject to certain limitations, such as, for example, limits on the number of Users or storage capacity. Any such limitations will be specified either in the Order Form or in the Documentation.
3. License Restrictions.  Customer shall not, directly or indirectly, and Customer shall not permit any User to, do any following: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the briq Service; (ii) modify, translate, or create derivative works based on any element of the briq Service or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the briq Service; (iv) use the briq Service for timesharing or service bureau purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer at the Facilities; (v) remove any proprietary notices from briq materials furnished or made available to Customer; (vi) publish or disclose to third parties any negative evaluation of the briq Service without briq’s prior written consent; or (vii) use the briq Service for any purpose other than its intended purpose.

2. THIRD PARTY OFFERINGS.

1. Integration with Third Party Offerings.  The briq Service may contain features designed to interoperate with Third Party Offerings (e.g., Salesforce, Facebook or Twitter applications, etc.).  To use such features, Customer may be required to obtain access to such Third Party Offering from their providers.  If the provider of any Third Party Offering ceases to make the Third Party Offering available for interoperation with the corresponding briq Service features on reasonable terms, briq may cease providing such features without entitling Customer to any refund, credit, or other compensation.
2. Third Party Hosting.  briq may use the services of one or more third parties to deliver any part of the Services, including any cloud-service providers such as AWS.  briq will pass-through any warranties to the extent that briq receives any from its then current third-party service provider that it can provide to Customer.  Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.

2. REGISTRATION; PASSWORDS; SECURITY.

1. Registration.  Customer agrees to provide complete, accurate and current information when registering an account to use the briq Service and other Services, and shall update such registration information promptly should it change or become inaccurate.
2. Passwords.  briq will either issue to Customer or Customer will create and issue to each User, a user identification and associated password for access to and use of the briq Service.  Customer and its Users are responsible for maintaining the confidentiality of all user identification numbers and/or passwords and for ensuring that each user identification number and/or password is used only by the User to which it was issued.  Customer is solely responsible for any and all activities that occur under Customer’s account and all charges incurred from use of the briq Service accessed with such user identification numbers and/or passwords.  Customer will restrict its Users from sharing passwords.  Unless otherwise specified in the applicable Order Form, User subscriptions are for designated Users only and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the briq Service. Customer agrees to immediately notify briq of any unauthorized use of Customer’s account, any user identification number and/or password, or any other breach of security known to Customer.  briq shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.
3. Security.  briq will use its commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards designed for the protection of the security, confidentiality and integrity of Customer Data in a manner consistent with what briq supplies generally to its other customers.
4. No Circumvention of Security.  Neither Customer nor any User may circumvent or otherwise interfere with any user authentication or security of the briq Service.  Customer will immediately notify briq of any breach, or attempted breach, of security known to Customer.
5. No Guaranty of Security.  Customer acknowledges that, notwithstanding the security precautions deployed by briq, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the briq Service and Customer Data.

2. AVAILABILITY; SUPPORT.

1. Availability.  Subject to the terms and conditions of this Agreement, briq will use its commercially reasonable efforts to make the briq Service available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which briq will use commercially reasonable efforts to provide at least 72 hours’ advance notice, and (b) routine maintenance times currently scheduled for every 7 days and as otherwise specified by briq, and (c) any unavailability caused by events or circumstances beyond briq’s reasonable control, including any event or condition of Force Majeure described in section 14.  Certain enhancements to the briq Service made generally available at no cost to all subscribing customers during the applicable Subscription Term will be made available to Customer at no additional charge.  However, the availability of some new enhancements to or features of the briq Service may require the payment of additional fees, and briq will determine at its sole discretion whether access to any other such new enhancements will require an additional fee.
2. Support. briq will provide technical support (“Support”) to Customer electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of holidays observed by briq (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by emailing support@br.iq briq will use commercially reasonable efforts to respond to all helpdesk tickets within one (1) business day. Customer acknowledges and agrees that the included implementation support services (as described in the ordering document that is signed by Customer) will be provided only for the first ninety (90) days following the execution of this Agreement.  Customer may purchase additional implementation support services.

2. CUSTOMER OBLIGATIONS.

1. Hardware/Software.  Customer is responsible for (i) obtaining, deploying and maintaining all computer hardware, software and communications equipment needed to access and use the briq Service, (ii) contracting with third parties that provide services required for its access and use the briq Service (e.g., ISP, telecommunications, etc.) and (iii) paying all third-party fees and access charges incurred while accessing and using the briq Service.  Except as specifically set forth in this Agreement or in an applicable SOW, briq will not be required to supply any hardware, software or equipment to Customer.
2. Project Management; Customer Onboarding.  Each Order Form and SOW will identify Customer’s project manager for the Services under such Order Form or SOW, who will act as a designated point of contact for the project and be responsible for the coordination and the implementation of Customer’s obligations under the Order or SOW (the “Project Manager”).  Customer may change its Project Manager by notice to briq.  Customer’s Project Manager will be responsible for: (a) providing the necessary resources and other support required by briq to perform the applicable Services; and (b) access to relevant Customer personnel and providing all approval and decision -making required by Customer related to performance of the Service.  Customer is responsible for dedicating Customer personnel and resources to implementing the briq Services.  (On average, briq’s customers dedicate approximately 60 to 80 person hours to implementing the briq Services within 150 days of the start of the implementation.)  The Parties will enter into a Scope of Work during the early stages of implementation and sign-off from the Project Manager will be a requirement to progress the implementation. briq will provide Customer an implementation team of briq personnel for 150 to 270 days after the Contract Start Date specified in the Order Form and after such time briq will provide Customer a named support representative and a named account manager, who may be changed by briq.  In the event Customer requests changes to the Scope of Work and/or fails to timely provide the necessary resources, support and/or cooperation required by briq to perform the Services, any such change and/or failure by Customer may impact the price to be paid by Customer, the schedule and briq’s ability to maintain the same team for the duration of the work.  
3. Compliance with Laws.  Each party represents and warrants, during the term of this Agreement, that it is in compliance with and will comply with all applicable laws and regulations applicable to its business and its performance of its obligations under this Agreement.  Customer represents and warrants that its owns or has licenses to all Customer Data and has an unrestricted right to transfer such Customer Data to briq for purposes of providing Services under this Agreement.  To the extent Customer Data includes personal information, Customer has obtained all necessary consents and has complied with all applicable laws, rules, regulations and orders, including without limitation, all data privacy laws, in collecting, processing, using and transferring such personal information to briq for purposes of providing Services under this Agreement.  Customer hereby agrees to indemnify, defend and hold harmless briq, its directors, officers, employees, agents, successors and assigns from any claims, actions, suits, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or related to (i) Customer’s breach of this Section, (ii) the provision of Customer Data to briq or (iii) the storage, processing or display of Customer Data by the briq Service.
4. Conduct.  Customer shall be solely responsible for its actions and the actions of its Users while using the briq Service.  Customer acknowledges and agrees (i) that Customer is responsible for selecting appropriate remediation for, and resolving, any issues found on Customer’s network, hardware, software, or third party services relied on by Customer to access and use the briq Service (collectively, “Customer Items”); and (ii) that briq is not liable for, or responsible to, remediate any issues found regarding Customer Items.  Customer agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the briq Service; (b) not to send or store data on or to the briq Service which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain viruses, worms, Trojan Horses, corrupted files, or any other similar software or programs, harmful code or data that may damage the operation of the briq Service or another's computer or mobile device; (d) not to use the briq Service for illegal, fraudulent, unethical or inappropriate purposes; (e) not to interfere or disrupt networks connected to the briq Service or interfere with other ability to access or use the briq Service; (f) not to distribute, promote or transmit through the briq Service any unlawful, harmful, defamatory, obscene, pornographic or otherwise objectionable material of any kind or nature; (g) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (h) not to interfere with another customer’s use and enjoyment of the briq Service or another person or entity's use and enjoyment of similar services; (i) not to use the briq Service in any manner that impairs the briq Service, including without limitation the servers and networks on which the briq Service are provided; (j) not to launch any program that “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the briq Service (through use of manual or automated means); and (k) to comply with all regulations, policies and procedures of networks connected to the briq Service and briq’s service providers.  Customer acknowledges and agrees that briq neither endorses the contents of any Customer communications or Customer Data, nor does briq assume any responsibility for any offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby.  briq may remove any violating content posted or stored using the briq Service or transmitted through the briq Service, without notice to Customer.  Notwithstanding the foregoing, briq does not and is not obligated to verify, authenticate, monitor or edit the Customer Data or any other information or data input into or stored in the briq Service for completeness, integrity, quality, accuracy or otherwise.  Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data input into the briq Service.  briq does not guarantee or make any promises regarding the accuracy or completeness of the Customer Data, or any such other data or information.

2. ANCILLARY SERVICES.

1. Statements of Work; Change Orders.  briq shall use commercially reasonable efforts to perform the Ancillary Services as set forth in applicable mutually executed SOWs.  Each SOW will include, at a minimum: (a) a description of the scope of Ancillary Services, (b) any work product or other deliverables to be provided to Customer (each a “Deliverable”), (c) the schedule for the provision of Ancillary Services, and (d) the applicable fees and payment terms for such Ancillary Services. All SOWs shall be deemed part of and subject to this Agreement. If there is any inconsistency between an SOW and this Agreement, the SOW shall control. If either Customer or briq requests a change to the scope of Ancillary Services described in a SOW, the party seeking the change shall propose such change by written notice. Promptly following the other party’s receipt of the written notice, the parties shall discuss and agree upon the proposed changes. briq will prepare a change order document describing the agreed changes to the SOW and any applicable change in fees and expenses (a “Change Order”). Change Orders are not binding unless and until executed by both parties. Executed Change Orders shall be deemed part of, and subject to, this Agreement. briq and Customer shall cooperate to enable briq to perform the Ancillary Services according to the dates of performance and delivery terms set forth in each SOW.  In addition, Customer shall perform any Customer obligations specified in each SOW.  In the event the Ancillary Services are not performed in accordance with the terms of the applicable SOW, Customer shall notify briq in writing no later than thirty (30) calendar days after performance of the affected Ancillary Services by briq, Customer’s notice shall specify the basis for non-compliance with the SOW and if briq agrees with the basis for non-compliance, then at briq’s sole option, briq shall re-perform the Ancillary Services at no additional charge to Customer or refund to Customer the applicable fees for the affected Deliverable or Ancillary Service.  THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND BRIQ’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR NON-PERFORMANCE OF THE ANCILLARY SERVICES.
2. Custom briq Workbooks.  The briq Services can allow automated creation of a briq workbook from Customer’s Microsoft Excel spreadsheet (an “Automated briq Workbook”).   However, in some situations, the functionality of Customer’s Microsoft Excel spreadsheet may not be possible to replicate through the briq Services or could result in long load times and/or poor user experience, thus Ancillary Services may be required.  Ancillary Services may include, as set forth in the applicable SOW, building and supporting one or more custom briq workbook templates (a “Custom briq Workbook”; collectively with the Automated briq Workbooks, the “briq Workbooks”) at a price of $2,950 per year per Custom briq Workbook or as otherwise set forth in the applicable SOW.  When building a briq Workbook from a pre-existing Microsoft Excel Spreadsheet, briq reserves the right to modify or create multiple briq Workbooks to provide a better user experience to Customer.  briq may, in its sole discretion, divide, combine or otherwise modify existing Microsoft Excel spreadsheets and templates to improve performance of the briq Workbook. If a Microsoft Excel spreadsheet or template is required, in briq’s sole discretion, to be modified into multiple Custom briq Workbooks, briq reserves the right to charge for the creation of additional Custom briq Workbooks at the above rate through a Change Order or SOW.
3. Non-Standard Connectors.  The briq Services contain functionality that enables Customer Data to be uploaded into the briq Services to facilitate the creation of briq Workbooks.  If parts of the Customer Data are not accessible in an automated manner using a standard briq connector (a “Standard Connector”), then Customer is responsible for providing briq with the data model, data location and data structure for such Customer Data in order for briq to access such Customer Data and upload such Customer Data into the briq Services.  Ancillary Services may include, as set forth in the applicable SOW (a) custom modifications to Standard Connectors (“Non-Standard Connectors”) at an hourly rate of $95 per hour billed annually, or as otherwise set forth in the applicable SOW; and (b) any data mapping, data cleaning or other changes to the Customer Data. 
4. Non-Financial Analytics Services and Training.  Ancillary Services may include, as set forth in an SOW, (a) briq providing analytic services and reports using Third Party Data; (b) analytics training on design and building Customer’s analytics based on data derived from the briq Services; and (c) extended analytics services, including an advanced analytics support pack at the starting cost of $2,950 per year per dashboard or as otherwise set forth in the applicable Order Form or SOW.

2. FEES AND TAXES.

1. Fees.  Customer agrees to pay all fees specified in applicable Order Forms and SOWs (collectively, “Fees”) using one of the payment methods briq supports.  Except as otherwise specified in this Agreement or in an Order Form, (a) Fees are quoted and payable in United States dollars, (b) Fees are based on services purchased, regardless of actual usage, (c) payment obligations are non-cancelable and fees paid are non-refundable, and (d) the number of Users of Subscription Terms purchased cannot be decreased during the relevant Subscription Term shown on the applicable Order Form(s).  User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.  If Customer’s use of the briq Service exceeds the service capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.  All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding. Customer may cancel its subscription by contacting customer support at support@br.iq provided that any subscription fees charged prior to the effective date of cancellation will not be refunded, in whole or in part. Invoices and Payments.  All Fees for the briq Service will be invoiced in advance and in accordance with the applicable Order Form.  Fees for Ancillary Services will be invoiced as set forth in an applicable SOW or Order Form.  Except as otherwise set forth in the applicable Order Form or SOW, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer is responsible for providing complete and accurate billing and contact information to briq and notifying briq of any changes to such information.
2. Taxes.  The Fees are exclusive of all sales, use, value-added and other taxes or duties and Customer shall pay all such taxes (excluding taxes based on briq’s net income).

2. OWNERSHIP.

1. briq Services.  As between briq and Customer, all right, title and interest in the Services and any other briq materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the briq Service, including all copyright rights, patent rights, trademark rights, and other intellectual property rights in each of the foregoing, belong to and are retained solely by briq or briq’s licensors and providers, as applicable.  Customer hereby does and will irrevocably assign to briq all ideas, feedback and suggestions made by Customer to briq regarding the briq Service (collectively, “Feedback”) and all intellectual property rights in the Feedback.  Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as briq may reasonably request, to perfect such ownership of the Feedback.  To the extent any of the rights, title and interest in and to Feedback or intellectual property rights therein cannot be assigned by Customer to briq, Customer hereby grants to briq an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest.  Except for the express licenses granted in Section 2.2 (License Grant), there are no other licenses granted to Customer, express, implied or by way of estoppel.  All rights not granted in this Agreement are reserved by briq. 
2. Customer Data.  As between briq and Customer, all right, title and interest in the Customer Data and all intellectual property rights in each of the foregoing, belong to and are retained solely by Customer.  Customer hereby grants briq a royalty-free, perpetual, transferable, assignable, sublicensable and irrevocable and worldwide right and license to collect, store, retain, analyze and process Customer Data relating to Customer and customers of Customer for the purposes of the performing its obligations under this Agreement and/or any SOWs and in connection with the use of the briq Service.  In addition, briq may monitor Customer’s use of the briq Service and use data and information related to such use and Customer Data in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”).  As between briq and Customer, all right, title and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by briq. briq may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.
3. briq Developments.  All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of briq, whether solely or jointly, including without limitation, in connection with briq’s performance of the Ancillary Services hereunder, including (unless otherwise expressly set forth in an applicable SOW) all Deliverables (“briq Developments”) and all intellectual property rights therein, shall be the sole and exclusive property of briq.  Customer agrees that, except for Customer Confidential Information, to the extent that the ownership of any contribution by Customer or its employees to the creation of the briq Developments is not, by operation of law or otherwise, vested in briq, Customer hereby assigns and agrees to assign to briq all right, title and interest in and to such briq Developments, including without limitation all the intellectual property rights therein, without the necessity of any further consideration.
4. Further Assurances.  To the extent any of the rights, title and interest in and to Feedback or briq Developments or intellectual property rights therein cannot be assigned by Customer to briq, Customer hereby grants to briq an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest.  If the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against briq those non-assignable and non-licensable rights, title and interest.  Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as briq may reasonably request, to perfect ownership of the Feedback and briq Developments.  If Customer is unable or unwilling to execute any such document or take any such action, briq may execute such document and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact.  The foregoing appointment is deemed a power coupled with an interest and is irrevocable.
5. License to Deliverables.  Subject to Customer’s compliance with this Agreement, briq hereby grants Customer a limited, non-exclusive, non-transferable license during the Subscription Term to use the Deliverables internally for its own business purposes solely in connection with Customer’s authorized use of the briq Service. Notwithstanding any other provision of this Agreement: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise (“Tools”) used by briq to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (ii) the term “Deliverables” shall not include the Tools.

2. TERM AND TERMINATION.

1. Term.  Contract will commence the later of the contract term start date or the actual kick off date no later than 30 days after contract execution.  Subscription Terms shall automatically renew for additional periods equal to the expiring Subscription Term unless one party gives the other written notice of non-renewal at least thirty (30) days prior to the expiration of the then current Subscription Term.  The per-unit pricing during any automatic renewal term shall be the same as that during the immediately prior term unless briq has given Customer written notice of a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal; provided however that no such pricing increase shall occur until after expiration of the then current Subscription Term.
2. Termination for Breach; Insolvency.  Either party may terminate this Agreement upon written notice if the other party has materially breached this Agreement and has not cured such breach within thirty (30) days of receipt of written notice from the other party specifying the breach.  A party may terminate this Agreement if (i) the other party has a receiver appointed for it or its property; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency or debtor's relief law; or (iv) the other party is liquidated or dissolved.
3. Failure to Pay/Customer Conduct.  Without limiting its rights under Section 10.2, above, briq may temporarily suspend Customer’s and Users’ access to the briq Service, with or without notice to Customer, if: (i) t Fees are not paid when due, (ii) any credit or debit card charge for Fees is declined; or (iii) if Customer breaches Section 6.3 (Compliance with Laws) or 6.4 (Conduct); such suspension will continue until the applicable issue is resolved.
4. Effect of Termination.  Upon expiration or termination of this Agreement, (a) Customer’s use of and access to the briq Service and briq’s performance of all Support and Ancillary Services shall cease; (b) all Order Forms and Statements of Work shall terminate; and (c) all fees and other amounts owed to briq shall be immediately due and payable by Customer, including without limitation, all fees incurred under any outstanding Scope of Work up through the date of termination for any Ancillary Services completed and a pro-rated portion of the Fees incurred for any partially completed Ancillary Services. Upon Customer’s request made within thirty (30) days after the effective date of applicable termination or expiration, briq shall make any Customer Data stored on the briq Service available for download by Customer in the format in which it is stored in the briq Service. After such 30-day period, briq shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.  In addition, within ten (10) days of the effective date of termination each party shall: (a) return to the disclosing party, or at the disclosing party’s option, the receiving party shall destroy, all items of Confidential Information (other than the Customer Data) then in the receiving party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to disclosing party that it has complied with the foregoing.
5. Survival. The following Sections of this Agreement shall survive the termination of this Agreement:  Sections 6.3 (Compliance with Laws, 8 (Fees and Taxes), 9 (Ownership) 10 (Term and Termination), 11 (Confidentiality), 12 (Warranty Disclaimer), 13 (Indemnification), 14 (Limitation of Liability), 17 (Governing Law) and 18 (General).

2. CONFIDENTIALITY.

1. Obligations.  Each of the parties agrees to maintain in confidence any non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party (“Confidential Information”). The parties hereby agree that briq’s Confidential Information includes the terms and conditions of this Agreement, and any discussions related thereto as well as the briq Service and materials provided with respect to the briq Service. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care.  Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither party shall make Confidential Information available to any other person or entity without the prior written consent of the other party.
2. Exclusions. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto.  A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
3. Destruction or Return of Confidential Information.  Upon expiration or termination of this Agreement for any reason, each party shall, to the extent practicable, promptly return to the other party, or destroy, as the parties agree, all copies of the other party’s Confidential Information.  All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving party in any form or for any reason. Notwithstanding the foregoing, a party (a) shall not, in connection with the foregoing obligations, be required to identify or delete (i) any Confidential Information of the other party held electronically in archive or backup systems in accordance with general systems archiving and backup policies or (ii) any analysis, compilations, reports, notes or other documents created by the party or any of its representatives that may contain Confidential Information and (b) may retain one copy of the Confidential Information for its business records and for compliance purposes; on condition that, in each instance, all retained Confidential Information remains subject to the confidentiality provisions of this Agreement.

2. WARRANTY DISCLAIMER.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, briq AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTIES AND HEREBY EXPRESSLY EXCLUDE AND DISCLAIM ALL WARRANTIES (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE ARISING IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE), INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  briq DOES NOT WARRANT THAT THE briq SERVICE, SUPPORT, ANCILLARY SERVICES, THIRD PARTY OFFERINGS OR THIRD PARTY DATA WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE briq SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

13. INDEMNIFICATION.

1. briq Indemnity.  briq shall defend, or at its option settle, any third party claims or suits against Customer based on a claim that the briq Service infringes any United States patent issued as of the Effective Date or any copyright or trade secret; and briq shall pay any final judgment entered against Customer in any such claim or suit or briq agreed to settlement amount; provided (a) briq is promptly notified by Customer in writing of such claim or suit, (b) briq or its designee has sole control of such defense and/or settlement, and (c) Customer gives all information and assistance requested by briq or such designee.  If any claim which briq is obligated to defend has occurred, or in briq’s determination is likely to occur, briq may, in its sole discretion and at its option and expense (i) procure for Customer the right to use the briq Service, (ii) replace the briq Service with other suitable solution, or (iii) terminate this Agreement and refund to Customer the Fee(s) paid by Customer during the three (3) month period prior to such termination.  briq shall have no liability under this Section or otherwise to the extent a claim or suit is based upon (i) Customer’s use of infringing Customer Data; (ii) use of the briq Service in combination with any software, hardware, network or system not supplied by briq where the alleged infringement relates to such combination, (iii) any modification or alteration of the briq Service other than by briq or any modification or alteration of the briq Service pursuant to a Customer requirement, instruction or specification, (iv) Customer’s continued use of the briq Service after briq notifies Customer to discontinue use because of an infringement claim, (v) Customer’s violation of applicable law; (vi) Third Party Offerings; (vii) Customer Items; and (viii) Third Party Data.  The terms in this Section shall be Customer’s sole and exclusive remedy in connection with third party claims of infringement.
2. Customer Indemnity.  Customer shall defend briq, its licensors and their respective officers, directors and employees (“briq Indemnified Parties”)  from and against any and all third-party claims which arise out of or relate to: (a) a claim or threat that the Customer Data (and/or the exercise by briq of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s intellectual property rights; (b) the right (or lack thereof) to use Customer Data; or (c) Customer’s use or alleged use of the briq Service other than as permitted under this Agreement.  Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such claim.  Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) briq providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim.  briq may, at its own expense, engage separate counsel to advise briq regarding a third-party claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.

13. LIMITATION OF LIABILITY.

1. Limitation on Direct Damages.  IN NO EVENT SHALL BRIQ’S AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRIOR TO CLAIM, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, LESS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY briq TO CUSTOMER IN SATISFACTION OF ANY LIABILITY UNDER THIS AGREEMENT.
2. Waiver of Consequential Damages.  IN NO EVENT SHALL briq OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF briq HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.  briq WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
3. Essential Purpose.  Customer acknowledges that the terms in this Section 14 are an essential bases of the bargain described in this Agreement and that, were briq to assume any further liability, the Fees would out of necessity, be set much higher.

13. U.S. GOVERNMENT CUSTOMERS.

If Customer is a Federal Government entity, briq provides the briq Service, including related software and technology, for ultimate Federal Government end use solely in accordance with the following:  Government technical data rights include only those rights customarily provided to the public with a commercial item or process and Government software rights related to the briq Service include only those rights customarily provided to the public, as defined in this Agreement.  The technical data rights and customary commercial software license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).  If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in this Agreement.

16. NOTICES.

briq may give notice to Customer by means of a general notice through the briq Service interface, electronic mail to Customer’s e-mail address on record with briq, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with briq. Customer may give notice to briq by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Briq Technologies Inc., 511 Olive St., Santa Barbara, California 93101, Attention: Ron Goldshmidt. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

17. GOVERNING LAW; DISPUTE RESOLUTION.

This Agreement shall be governed by, and construed in accordance with, the laws of the state of California, excluding its conflict of laws rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Agreement.  The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form.  Any dispute arising out of or in connection with these Agreement, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties' relationship created by these Agreement, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules.  The number of arbitrators shall be one (1).  The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator.  If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators.  The AAA shall appoint an arbitrator from the list of five (5), based upon the parties' rankings.  The seat, or legal place of arbitration shall be Santa Barbara, California, United States.  Notwithstanding the foregoing, briq has the right to pursue equitable relief in the state and federal courts located in California, and Customer agrees to the exclusive jurisdiction and venue of such courts.

18. GENERAL.

briq may subcontract to third parties some or all of briq’s obligations under this Agreement.  This Agreement and the rights hereunder may not be assigned or transferred by Customer, including without limitation, by acquisition, merger, operation of law or otherwise, without briq’s prior written consent.  Any assignment in violation of the foregoing is null and void.  briq may freely assign or transfer its rights under this Agreement. This Agreement shall inure to the benefit of each party’s successors and permitted assigns.  This Agreement, together with all addenda, schedules, and exhibits, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements and understandings between the parties relating to the subject matter hereof.  The failure of briq to require performance by Customer of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by briq of a breach of any provision hereof be taken or held to be a waiver of the provision itself.  Except as otherwise provided herein, this Agreement may be amended or superseded only by a written instrument signed by both parties that identifies itself as an amendment to this Agreement.  If any provision of this Agreement is held to be unenforceable, that provision will be enforced to the maximum extent permitted by law and it shall not affect the enforceability of any other provisions of this Agreement.  Except for Customer’s obligation to timely pay Fees, neither party shall be liable for or in breach of this Agreement if its failure to perform any obligation under this Agreement is due to or caused by events, causes or conditions beyond that party’s reasonable control, including, without limitation, (i) acts of God, (ii) civil commotion, (iii) fire, flood, earthquake, tsunami, storm, weather or other catastrophes, (iv) war, acts of terrorism, national emergencies, insurrections, riots, (v) strikes, lock-outs, work stoppages, labor disputes or other labor difficulties, (vi) pandemics or epidemics, (vii) third parties, including third party service providers (including cloud service providers and providers of social networks), (viii) Internet service interruptions or slowdowns, (ix) vandalism or “hacker” attacks, (x) any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority, including any governmental demands or requirements, (xi) unavailability of rights-of-way or materials, (xii) or any other reason or cause beyond the reasonable control of such party, whether similar or dissimilar to the foregoing (each, a “Force Majeure” event). Customer and briq are independent contractors and neither party is the legal representative, agent, joint venturer, partner, franchisor, franchisee or employee of the other party for any purpose whatsoever.  Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever.  Pre-printed terms and conditions on or attached to any Customer purchase order or other document shall be of no force or effect.  All indices, titles, subject headings, section titles and similar items contained in this Agreement are provided for the purpose of reference and convenience only and are not intended to be inclusive, definitive or to affect the meaning, content or scope of this Agreement.  No remedy is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise legally available to a party.  This Agreement is proposed and executed in the English language only and any translation of this Agreement into any other language shall have no effect.  All proceedings related to this Agreement will be conducted in the English language.

19. MARKETING.

briq may use Customer’s name as part of a general list of customers and may refer to Customer as a user and customer of the briq Service in its general advertising and marketing materials.

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