These TERMS OF SERVICE (the “Terms”) shall govern your purchase and use of LiftPilot, a solution made available by Braq, LLC, a California limited liability company (referred to in these Terms as the “Company”). You will be referred to in these terms as the Client.  These Terms are effective between us as of the date you place your order and accept these Terms (the “Effective Date”). Company and Client may each be referred to as a Party and may be collectively referred to as the Parties.

The Parties hereby agree as follows:

1. Services

You have selected the specific services (the “Services”) you have engaged Company to make available to you (your “Order”), and your Order is expressly governed by these Terms (these Terms and the Order are collectively, the “Agreement”).   Company may choose to make certain Services available to you for a free trial period, not to exceed a period of fourteen (14) days, at which time the Services will be charged at posted rates in effect at the expiration of the trial period, and shall become a month to month subscription unless otherwise agreed via an Order. Company may also invite you to try new features or functionality not generally available to users (“Beta Services”). Company may discontinue free trials and Beta Services at any time, and may choose not to make Beta Services generally available. Notwithstanding anything to the contrary in these Terms, FREE TRIALS AND BETA SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY SERVICE LEVEL OR SUPPORT COMMITMENT.  Upon conclusion of a free trial or use of a discount, the applicable Fees shall be at the then-current rate in effect at the expiration of the free trial or discount period. 

2. Grant of License

Subject to Client’s compliance with these Terms, Company hereby grants Client a nonexclusive, nontransferable, non-sublicensable, limited license (“License”) to use the Services and any Company content provided through or in connection with the Services only in accordance with and subject to the selections you made with your Order and these Terms. This License shall continue until the expiration or termination of your Order in accordance with these Terms.  Company shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback (collectively, “Feedback”) provided by Client and/or its users relating to Services.  Client hereby consents for it and its users to receive electronic communications from Company. These electronic communications may include notices about Client’s subscription, payments, security, violations of these Terms and obligations of your Order, suspension of the use of the Services, termination of your Order, changes to Services, and other communications related to the Services. 

3. Intellectual Property

Company agrees that all right, title and interest (including intellectual property rights) in and to the content uploaded to the Services by or on behalf of Client is owned exclusively by Client; provided that Client agrees that Company may collect, anonymize and aggregate data not including personal data from such Client content and use of the Services (“Aggregate Data”) which Company may use for its own lawful business purposes in any manner that does not identify Client as the source of such Aggregate Data. Client agrees that all right, title and interest (including intellectual property rights) in and to the Services and any documentation, content or materials provided in connection with the Services, and all updates to any of the foregoing, and all derivatives thereof including Aggregate Data, are owned exclusively by Company. All rights not expressly granted by Company to Client under the Agreement are reserved to and retained by Company. This Agreement grants subscription access and license rights as described herein and except for the limited rights expressly granted herein, no other rights are granted and no other use permitted. This Agreement is not a sale and does not assign, transfer or convey to Client or any authorized user any rights of ownership or any intellectual property rights (except as expressly set out in this Agreement) in or related to the Services and any documentation, content or materials. Company may, without compensation of any kind to Client or its authorized users, use or act upon any Feedback provided by Client and/or its authorized users relating to the operation or functionality of the Service. 

4. Use Restrictions

The License granted hereunder is for Client’s internal use only.  Client shall not, and shall not permit others (including users) to, directly or indirectly, do or attempt to do any of the following: (i) use the Services for any unlawful purpose or for purposes other than those set forth in the Agreement; (ii) attempt to download, copy, recreate, disassemble, modify, translate, reverse engineer or decompile the Services or otherwise attempt to discover any trade secret contained in the Services; (iii) remove, alter or obscure any copyright or other proprietary notices contained in the Services; (iv) sell, rent, lease, license or sublicense or otherwise transfer Client’s right to use the Services except as expressly set forth in the Agreement; (v) access or probe the Services via an automated tool, except as specifically consented to in advance in writing by Company; (vi) modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information, software, products, services or benefits obtained from the Services, associated Company websites or Company, except as expressly provided herein; (vii) use the Services to host, collect or transmit any Sensitive Personal Information, Harmful Content, immoral, pornographic, infringing or illegal content; or (viii) materially overload, disrupt, overburden, or impair the Services; (iix) use the Services for the benefit of a competitive offering.  As used herein Sensitive Personal Information means dates of birth, Social Security or other government identification numbers, financial information, health data or other elements of regulated personal data subject to restriction under the Fair Credit Reporting Act (FCRA), Health Insurance Portability and Accountability Act (HIPAA) or the Gramm-Leach-Bliley Act (GLBA). As used herein, Harmful Content means any content containing a virus, worm, Trojan horse, malware or other malicious code. Company reserves the right, but has no obligation to, monitor and remove any content or disable any accounts the violate the foregoing restrictions. 

5. Term

The initial term of this Agreement (the “Initial Term”) shall be for the period set forth in the Order, commencing on the Effective Date and ending at 11:59 p.m. the day prior to the anniversary of the Effective Date. The Agreement shall be automatically renewed for successive equivalent periods of (each a “Renewal Term”).  The Initial Term and all Renewal Terms shall be collectively referred to as the “Term”.  Either Party may notify the other in writing of its election not to renew the then-current Term a minimum of five (5) calendar day prior to the expiration of such Term. In the event that the Agreement would otherwise expire prior to the end of any subscription period specified in a Service Order by reason of Client's election not to renew this underlying Agreement, the Term of this Agreement shall automatically be extended through the date of expiration of applicable subscription period identified in the applicable Service Order.

6. Company Fees

6.1 Fees

In consideration of the provision of the Services to be rendered by Company, Client shall pay to Company all applicable Fees for the then-current Term in full in advance unless otherwise expressly agreed in an Order. Payment of all such Fees shall be made by Client in accordance with Section 6.2.  Fees shall be based on the selected “Tier” of the following available pricing Tiers in the Client’s Order: (i) Basic; (ii) Advanced; or (iii) Enterprise.  Each Tier shall be subject to the usage limitations identified in the Order, and in the event Client’s usage exceeds the limitation for their selected Tier, Client shall be responsible for and shall pay Company the over utilization by either buying up to the next Tier or payment of a per use over the applicable Tier limit.  Company is expressly authorized by Client to collect payment for such over utilization via use of Client’s credit card on file upon notice to Client of its over utilization and associated charge.  If Client wishes to upgrade to a higher Tier mid-Term, Company will prorate the applicable Fees for such upgrade.  If Client notifies Company of a downgrade in Tier, such downgrade will happen at the beginning of the next applicable Term.

6.2 Payment Terms

All Fees shall be paid in full upon placement of the applicable Order via Client’s credit card on file with Company, which must at all times include the then-current information. Any invoice submitted by Company shall be deemed correct unless Client provides written notice to Company within ten (10) days of receipt of the invoice date specifying the nature of Client’s good faith dispute, and the Parties shall work together expeditiously to resolve any such disputes. Client’s failure to timely pay all undisputed Fees when due may result in Company’s suspension of all Services until payment is made in full for overdue undisputed invoiced amounts (for the avoidance of doubt, Client may not withhold the undisputed portion of any invoice even if Client disputes another portion of such invoice).  Nothing in the preceding sentence shall limit Company’s right to pursue any other remedy available under this Agreement or applicable legal or equitable remedies. Company shall not be liable or responsible for any loss due to non-availability of Services, unpublishing of landing pages, or removal of integrations (if any) resulting from the cancellation/suspension action due to non-payment of any invoice.

6.3. Credit Cards.

If payment is by credit card: (i) Client acknowledges that Company does not see or store full credit card numbers at any time; (ii) Client is responsible for keeping current credit card information on file and (iii) authorizes our third-party card processing provider to store and charge such card for Fees due hereunder.

6.4 Excess Use

Client is responsible for tracking its usage.  If Client usage exceeds the limits set forth in the applicable Service Order, Company shall invoice Client for the excess usage in monthly increments in accordance with the fee schedule set forth in the applicable Service Order, or if not specified, in accordance with its standard price list. Any such excess usage fees are payable upon receipt of invoice.  

7. Taxes

Client shall pay any sales, use, excise, value added, and other taxes and duties however designated that are levied by any taxing authority relating to the Services to the extent Client is obligated to pay such sums under Applicable Law. In no event shall Client be responsible for taxes based upon the income of Company.

8. Client Obligations, Indemnity, and Representations

Client shall provide Company, in a timely fashion, with all documents and information reasonably requested by Company for its use in the performance of the Services hereunder; Client shall otherwise reasonably cooperate with Company in order to enable Company to perform such Services; Client is solely responsible for all activity occurring in its account including the use of content, and the collection and processing of personal data (if any), and shall monitor and control access to the Services by its employees and agents. Client shall at its own cost and expense ensure it has the necessary access to the internet, computer equipment and up to date, industry standard operating software and systems as may be necessary to access the Services, and shall ensure that the Services are utilized in a manner that does not violate the Use Restrictions in Section 4 or any applicable international, federal, state, or local law, rule, or regulation including applicable privacy laws (hereinafter collectively referred to as “Applicable Law”). Client agrees to indemnify and hold Company harmless from and against any liability, loss, damage, cost, penalty, or expense of any kind arising out of or in any way relating to (i) the use of the Services by Client; (ii) the breach by Client of any provision of this Agreement; or (iii) violation by Client of any Applicable Law in its utilization of the Services or of the information obtained through such utilization. Nothing contained herein shall be construed to require Client to indemnify Company for losses directly resulting from any wrongful act of Company. Client represents and warrants that no contractual obligations exist that would prevent Client from entering into this Agreement and that it has requisite authority to execute, deliver, and perform this Agreement.

9. Company Obligations, Representations, and Indemnity

Company warrants and represents that it has the right to provide the Services; that the Services (expressly excluding content not created directly by Company and data provided or otherwise made available by Client) do not infringe on any registered US copyrights, trademarks, or patents held by others, and that it will exercise due care and diligence in providing the Services to Client. Company agrees to indemnify and hold Client harmless from and against any damages finally awarded for any third party claim directly caused by Company’s breach of the foregoing warranties; provided however, that Client’s sole and exclusive remedies regarding a claim of infringement shall be, at Company’s option, either modification of the Services to make them no longer infringing, securing the right to continue to use the Services from the relevant third party, or termination of the Agreement with respect to such infringing Services and a pro rata refund of any prepaid Fees for the applicable infringing Services beyond the effective date of such termination pursuant to this Section 9.  Notwithstanding anything herein to the contrary, in addition to the limitations set forth in this Section 9, all liability of Company under this Agreement shall be limited in accordance with Section 10.

To the extent Company has access to any personal data of Client or its users in the provision of the Services such data will be handled in accordance with Company’s privacy policy set forth at: https://liftpilot.ai/privacy-policy/.

The Services are not designed or intended for use or distribution in hazardous or high risk environments requiring fail-safe performance in which software failure could lead to death, personal injury, or severe physical or environmental damage. The Services are not designed for or marketed to children under 18. If Client uses the Services to gather personal information about minors, then Client is responsible for obtaining appropriate consent from the minor’s parent or legal guardian.

THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY COMPANY, WHETHER EXPRESS OR IMPLIED. THE SERVICES SHALL BE PROVIDED WHERE IS AND “AS IS”.  COMPANY DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AVAILABILITY, EFFECTIVENESS OF SECURITY MEASURES, ACHIEVEMENT OF ANY PARTICULAR RESULT, OR THAT THE SERVICES WILL BE ERROR FREE.

10. Limitation of Liability

The liability of Company in connection with any claim by Client or any third party based upon any matter relating in any way to this Agreement or to the Services shall not in any event exceed an amount equal to the greater of (i) the sums paid by Client to Company during the ninety (90) day period immediately preceding the act or event allegedly giving rise to liability on the part of Company or (ii) $1,000, regardless of whether such claim is based upon breach of contract, negligence or other theory. Client acknowledges (i) that the Service Order Fees and any SOW Fees to be charged by Company hereunder reflect the fact that the liability of Company is limited as set forth herein and (ii) that, in the absence of such limitation, such fees would be substantially higher.

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN CONTRACT, IN TORT OR OTHERWISE. NEITHER PARTY MAY ASSERT ANY CLAIM AGAINST THE OTHER MORE THAN ONE (1) YEAR AFTER SUCH CLAIM ACCRUED.  NOTWITHSTANDING ANYTHING IN THIS SECTION 10 TO THE CONTRARY, IN THE EVENT OF NON-PAYMENT OF FEES WHEN DUE AND CLIENT’S FAILURE TO CURE SAME WITHIN FIFTEEN DAYS OF WRITTEN DEMAND THEREFOR, IN ADDITION TO PAYMENT OF THE BALANCE DUE, CLIENT SHALL PAY COMPANY’S REASONABLE COSTS OF COLLECTION, INCLUDING ATTORNEY’S FEES REASONABLY NECESSARY TO SECURE SUCH PAYMENT. 

11. Termination Rights

Either Party may terminate this Agreement in the event of a material breach by the other Party which is not cured within thirty (30) days (except with respect for timely payment) following written notice to Company stating, with particularity and in reasonable detail, the nature of the claimed breach.  Material breaches shall include, but are not limited to the following: (i) Client’s failure to pay any invoice within fifteen (15) days of its due date unless such invoice has been timely disputed by Client in good faith; (ii) either Party breaches this Agreement in any material respect or otherwise defaults in any material respect in the performance of any obligations and fails to cure such breach or default within thirty (30) days after notice thereof is given to the other Party (except as set forth in (i) above); (iii) a Party commits an act of bankruptcy, becomes insolvent, or becomes the subject of any proceeding under the Bankruptcy Code, which proceeding is not dismissed within thirty (30) days after it is filed; or (iv) Client violates any Applicable Law in its utilization of the Services or of the information obtained through such utilization, or Company violates an Applicable Law in its provision of the Services to Client.

12. Effects of Expiration or Termination

If Client is utilizing a paid version of the Services and the paid subscription expires without renewal, upon such expiration such subscription will be reduced to the available free offering (if any) and any excess content, pages or functionality shall be removed or disabled.  Upon termination by either party for any reason, any content posted by Client in the Services (i.e., webpages) shall be promptly taken down without any further obligation on the part of Company with respect thereto.  Upon written request received on or before the effective date of such termination, Client may receive a copy of any such content.  Thereafter, Company shall permanently delete all Client content, excluding any Aggregated Data. In the event of termination by Company pursuant to Section 11, Company shall be entitled to recover from Client, all outstanding but unpaid Fees set forth in the applicable Order(s) for the full remainder of the Term.  Such amount shall be recoverable by Company as liquidated damages and not as a penalty. Client acknowledges and agrees that the damages that Company would sustain in the event of a default by Client would be extremely difficult, if not impossible, to ascertain and that the foregoing measure of damages is reasonable under the circumstances. Client further agrees that Company shall be entitled to recover from Client all costs and expenses, including reasonable attorneys’ fees, incurred by Company in connection with any action, counterclaim, or proceeding brought by Company based upon such default.

13. Confidentiality

Each Party (in each case, a “Recipient”) acknowledges that it may receive information concerning the business and affairs of the other Party which constitutes confidential or proprietary data and trade secrets of the other Party (in each case, an “Owner”) in connection with the performance of the Agreement. The Parties’ respective “Confidential Information” shall include, without limitation, any information concerning the business (including all agreements entered into by Owner), properties, financial affairs, intellectual property, policies and procedures, organizational structure, prospective and current customers, marketing and advertising, information technology and processes, supplies and suppliers, vendor relationships, plans or operations of Owner, or any other information of any kind regarding Owner’s business. Client’s Confidential Information shall also include its customer lists and customer and prospective customers’ contact information. Company’s Confidential Information shall also include all information, software, programs, documentation, strategies, plans, pricing and other intellectual property concerning the Services. The Parties further acknowledge that the terms and conditions of the Agreement, including pricing, and the related negotiations between the Parties with respect to the Agreement shall be treated as confidential pursuant to this Section.  Notwithstanding anything to the contrary herein, neither Party shall have any obligation (pursuant to the Agreement or otherwise) with respect to any Confidential Information which: (i) is already known to Recipient without any confidentiality undertaking (as evidenced by supporting documentation); (ii) is or becomes publicly known through no fault of Recipient; (iii) is approved for release in writing by Owner; (iv) is required to be disclosed by law or pursuant to the request of a court or governmental agency; provided, however, that Recipient shall if legally permitted provide Owner with at least ten (10) days’ advance written notice of such legal requirement prior to disclosure and assist Owner as requested in obtaining a protective order for such Confidential Information or other similar relief; or (v) is rightfully received from a third person having no secrecy or confidentiality obligation to Owner. Each Recipient agrees to hold each Owner’s Confidential Information in confidence, in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care), and to refrain from disclosing same to any third parties or to its own representatives other than those who need to know same, and use same only as authorized hereunder; except that each party shall be permitted to disclose Confidential Information to its attorneys, accountants, and similar professionals for its own internal business purposes provided that such persons are subject to restrictions at least as strict as those set forth in this Section. Such restrictions shall remain in effect during the Term and for a period of three (3) years after termination of the Agreement for any reason; provided, however, that if any such Confidential Information is subject to government or other regulation or constitutes a trade secret, such restrictions shall remain in effect for so long beyond such period as such Confidential Information continues to qualify as so defined.

14. Governing Law; Disputes

Any dispute or controversy arising out of this Agreement shall be governed by and subject to the laws of the State of California, without regard to its body of law regarding conflict of laws. 

15. General

15.1 Force Majeure

Company shall not be liable in any manner for any damage or loss sustained by Client as a result of any act or event outside the reasonable control of Company, including, but not limited to, any damage or loss arising out of (i) acts or omissions of Client, its authorized users, or third parties or (ii) any failure or delay in providing the Services resulting from acts of God, power outages, failure of communication lines, internet failure, or similar occurrence or (iii) any failure or inability of a third party to furnish data. Upon the occurrence of any of the foregoing, Company shall make the Services available insofar as reasonably possible and recommence the full performance and delivery of the Services as soon as practicable.

15.2. Subcontractors

Company may utilize subcontractors in the provision of the Services. Company shall comply with all applicable laws in its use of such subcontractors including data protection laws if such subcontractors process personal data.  Company shall be responsible for the act and omissions of its subcontractors as if they were the acts or omissions of Company.  Company shall provide Client a list of its subcontractors on request.

15.3 Binding Agreement

The Agreement, expressly including these Terms, is binding upon the parties and their respective successors and permitted assigns. Neither this Agreement nor any interest herein may be sold, assigned, transferred, pledged, or otherwise disposed of by Client, whether pursuant to change of control or otherwise, without the prior written consent of Company.

15.4. Entire Agreement

These Terms (as amended from time as set forth herein), and the Order(s) entered between the Parties for the Services, constitutes the complete and exclusive statement of the Agreement between the Parties as to the subject matter hereof and supersedes all previous agreements with respect thereto. Modifications of these Terms may be made by Company from time to time by posting updated terms at [INSERT A LINK WHERE THESE TERMS WILL LIVE AND WHERE YOU WOULD POST UPDATED TERMS], and will be effective upon the sooner of your use of the Services or thirty (30) days from the date posted.  Any amendment or modification to an Order must be in mutually agreed by the Parties. Each Party hereby acknowledges that it has not entered into this Agreement in reliance upon any representations made by the other Party that have not been embodied herein. In no event will any terms set forth in a purchase order, vendor registration process or any other purchasing vehicle or online policy of Client apply to or modify the terms herein and all such terms are expressly disclaimed by Company.

15.5. Marketing.

Company may use any trademarks, service marks, logos, business names, or trade names of Client (the “Client Marks”), to identify Client as a customer. Company use shall be in accordance with any branding guidelines provided by Client.  Any further promotional use will be subject to Customer’s prior consent (email is sufficient). Client expressly agrees to receive marketing communications from Company to the extent consent by executing or accepting this Agreement is permitted by law.

15.6 Severability

If any provision of this Agreement is held to be unenforceable or invalid, the other provisions shall continue in full force and effect.

15.7. Notices

Any notice required or permitted to be given hereunder shall be in writing and given: (i) by electronic communication, including e-mail with confirmation of receipt; (ii) by personal hand delivery; or (iii) by nationally recognized overnight courier service, in each case directed to the other party at the address or contact information set forth in the signature blocks below or to such other address or designated contact as a party may designate in writing. All such notices shall be effective upon receipt.

15.8. No Waiver

The failure of either Party to insist on strict performance of any of the provisions hereunder shall not be construed as the waiver of any subsequent default of a similar nature.

15.9 Survival

All rights and obligations of the Parties under this Agreement that, by their nature, do not terminate with the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.