Imagica Environment Terms of Service

Last Updated: December 15, 2023

Please read these Terms of Service (“Terms”) carefully as they govern your use of the environment that allows you to build applications using natural language (the “Environment”) made available by Brain Technologies, Inc. (“Brain,” “us,” “we,” or “our”), that implement and use Brain’s proprietary  machine-learning and artificial intelligence-based functionality and tools (the “Brain Functionality”) (such applications, the “Apps”).  If the Environment will be used by or on behalf of an organization or company, the individual indicating acceptance of these Terms represents that he or she has the authority to bind that organization or company to these Terms, and “you” herein refers to that entity. “End-User” means (i) individual purchasers of your Apps; and/or (ii) for corporate enterprise or educational institution customers, the individual or individuals authorized to use your App, including administrator users.

Please review our Privacy Notice at https://brain.ai/privacy/ for information on how we collect, use and share your information.  

IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS AS AN INDIVIDUAL USER, AND NOT ON BEHALF A COMPANY OR LEGAL ENTITY, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND BRAIN THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 20 “DISPUTE RESOLUTION FOR INDIVIDUALS” BELOW.

  1. Agreement. Your access to and use of the Environment is conditioned upon your acceptance of and compliance with these Terms. By clicking on the “I accept” button below or by accessing or using the Environment, you have indicated that you understand these Terms and accept all of their provisions. If you do not accept all of these Terms, then Brain is unwilling to grant you access to the Environment and you should not use the Environment. These Terms may be modified at any time by Brain upon posting of the modified Terms. Each use by you shall constitute and be deemed your unconditional acceptance of the Terms and your continued use of the Environment signifies and confirms your acceptance of any modifications made to the Terms.  

When you create an account with us or otherwise access and use the Environment, you guarantee that you are 18 years or older, and that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on the Environment.

You acknowledge and agree that Brain will host your App on Brain’s Imagica platform (the “Platform”).

  1. Grant of License.  Subject to your compliance with the terms and conditions of these Terms, Brain grants you a limited, nonexclusive, revocable, non-sublicensable and non-transferable right to access and use the Environment solely for the purposes of developing Apps that operate on or in connection with the Platform.
  2. Ownership. Subject to these Terms, you own any Apps you create. You acknowledge that Brain and its licensors own all worldwide right, title and interest in and to the Environment, the Brain Functionality and the Platform including all intellectual property rights therein. Brain reserves all rights in and to the Environment, the Brain Functionality and the Platform not expressly granted to you in these Terms.  You have no proprietary interest in any software, system, source code, run code or other intellectual property of Brain.
  3. Restrictions.  Except as expressly authorized under these Terms, you may not: (a) copy, modify, display, distribute, transfer or sublicense the Environment, the Brain Functionality and the Platform or otherwise make the functionality of the Environment, the Brain Functionality and the Platform available to any third party through any means; (b) interfere with, bypass or disable any features or functionality that are embedded in or included with the Environment, the Brain Functionality and the Platform; (c) access or use the Environment, the Brain Functionality and the Platform for the purpose of monitoring the availability, performance, or functionality of the Environment, the Brain Functionality and the Platform or for any other benchmarking or competitive purpose; (d) access or use the Environment, the Brain Functionality and the Platform in any unlawful manner, for any unlawful purpose or in any manner inconsistent with these Terms; (e) use any scraping, data harvesting, web crawlers, or other data extraction methods to extract data from the Environment, the Brain Functionality and the Platform; or (f) remove an App from, or distribute an App or otherwise make it available independent of the Platform or Environment.  You acknowledge and agree that certain aspects of the Environment, the Brain Functionality and the Platform constitute or contains trade secrets of Brain and its licensors.  Accordingly, you will not disassemble, decompile or reverse engineer the Environment, the Brain Functionality and the Platform or permit or authorize a third party to do so.  In order to access the Environment, you may select and create credentials to access and use the Environment (the “Credentials”).  You are solely responsible for the security of the Credentials and to take appropriate measures to protect the credentials.  You are responsible for any unauthorized access to the Credentials or your account to access and use the Environment.
  4. Rate Limits. You must abide by any limitations on access, calls, and use of the Brain Functionality (such as rate limiting) that are set by Brain (such limitations are set forth in the relevant documentation or will be otherwise communicated to you). You may not attempt to circumvent those rate limits without Brain’s prior written consent. If you exceed these rate limits (or Brain believes that you have attempted to do so), your ability to access the Brain Functionality and/or use the Brain Functionality may be temporarily or permanently blocked. Brain may monitor your access and use of the Brain Functionality to ensure your compliance with these Terms.
  5. Updates and Revisions to the Environment.  Brain reserves the right to modify the Environment, the Brain Functionality and the Platform, release subsequent versions of the Environment, the Brain Functionality and the Platform or discontinue the Environment, the Brain Functionality and the Platform in its sole discretion. You are responsible, at your expense, for making any changes to your Apps that are required as a result of Brain’s updates and revisions to the Environment, the Brain Functionality and the Platform. Brain will attempt to provide thirty (30) days’ advance notice of any major updates or revisions, as determined by Brain in its sole discretion, to the Environment, the Brain Functionality and the Platform, including, but not limited to, changes to price, changes that are not backward compatible, or those that significantly change its functionality, by emailing you, posting such notice on Brain’s website at https://get.imagica.ai/ or via other communications. If circumstances require Brain to make an immediate change, Brain will attempt to provide you with as much advance notice as possible.
  6. Third-Party Components. We may provide access to third-party tools or resources only as a convenience and are not responsible for the content, products or services on or available from those tools or resources. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources.
  7. Content. The Brain Functionality may allow you and users of your Apps to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material, including video and audio content (“Content”). You are responsible for the Content or communications that your customers create and/or disseminate using your App, including its legality, reliability, and appropriateness. Brain shall have no liability of any kind with respect to any such Content. You agree that you must assess and bear all risks associated with your use of any such Content.

You agree not to and to not knowingly permit any users of your Apps to do any of the following:

  1. Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
  2. Use, display, mirror or frame the Environment, the Brain Functionality or the Platform or any individual element within the Environment or the Platform, Brain’s name, any Brain trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Brain’s express written consent;
  3. Access, tamper with, or use non-public areas of the Environment, the Brain Functionality or the Platform, Brain’s computer systems, or the technical delivery systems of Brain’s providers;
  4. Attempt to probe, scan or test the vulnerability of any Brain system or network or breach any security or authentication measures;
  5. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Brain or any of Brain’s providers or any other third party (including another user) to protect the Environment, the Brain Functionality or the Platform;
  6. Attempt to access or search the Environment, the Brain Functionality or the Platform or download content from the Environment, the Brain Functionality or the Platform using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Brain or other generally available third-party web browsers;
  7. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
  8. Use any meta tags or other hidden text or metadata utilizing a Brain trademark, logo URL or product name without Brain’s express written consent;
  9. Use the Environment, the Brain Functionality or the Platform, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
  10. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Environment, the Brain Functionality or the Platform to send altered, deceptive or false source-identifying information;
  11. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Environment, the Brain Functionality or the Platform;
  12. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Environment, the Brain Functionality or the Platform;
  13. Collect or store any personally identifiable information from the Environment or the Platform from other users of the Environment, the Brain Functionality or the Platform without their express permission;
  14. Impersonate or misrepresent your affiliation with any person or entity;
  15. Violate any applicable law or regulation; or
  16. Encourage or enable any other individual to do any of the foregoing.

Brain has the right but not the obligation to monitor your use of the Environment, the Brain Functionality and the Platform and may at any time, for any reason, in its sole discretion, terminate your use of the Environment, the Brain Functionality or the Platform.

We reserve the right to refuse service, terminate accounts or access, remove or edit content in our sole discretion.

  1. Use of Brain Marks.  Brain hereby grants to you a revocable, nonexclusive, limited right to use the Brain trademarks, service marks, or other branding features as provided by Brain (“Marks”) solely for the purpose of designating the Apps as utilizing Brain’s technology (e.g., “Powered by Brain”); provided, you must obtain Brain’s prior written approval for the use of any Mark in each instance. Any use of the Marks must adhere to any brand guidelines provided by Brain. Upon termination of your access to or use of the Environment, you must cease from the use of any Marks. Any and all goodwill generated by use of the Marks will inure to the benefit of Brain. Notwithstanding anything to the contrary contained herein, you shall immediately remove any use of Marks upon Brain’s request.

  2. Paid Subscription Services. Brain offers two tiers of subscription services for a fee (“Pro” and “Business”, described at https://www.imagica.ai/) that you can purchase to use certain features available on the Environment, Brain Functionality and Platform (a “Subscription,” and such services “Subscription Services”). By purchasing the Subscription (or certain portions thereof), you agree to the pricing, payment and billing policies and terms applicable to such fees and charges, as posted by Brain at https://www.imagica.ai/ or otherwise communicated to you.

  1. General. When you purchase a Subscription (each, a “Transaction”), you expressly authorize us or our third-party payment processor (for example Stripe), to charge you for such Transaction. We may ask you to supply additional information to verify your identity or that is relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to our third party services providers (for example Stripe), so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. You are responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by you to Brain hereunder, other than any taxes imposed on Brain’s income. All fees and applicable taxes, if any, are payable in United States dollars.

  2. Subscriptions. If you purchase a Subscription, you will be charged a monthly or annual fee for the Subscription, as applicable, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each month or year, as applicable, thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE BRAIN TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we or our third-party payment processor services provider, will automatically charge you each subsequent month or year, as applicable, on a day corresponding to the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. If Brain cannot charge your selected payment method for any reason (such as expiration or insufficient funds), you remain responsible for any uncollected amounts, and Brain will attempt to charge the payment method again as you may update its payment method information. If you fail to make any payment when due, we reserve the right to suspend access to your Subscription Services account until any overdue payments are paid in full and you subscribe again, if applicable. No less than thirty (30) days and no more than sixty (60) days before your Subscription term ends, or otherwise in accordance with applicable law, Brain will send you a reminder with the then-current Subscription Fee. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Brain. Your Subscription continues until cancelled by you or we terminate your access to or use of the Subscription Services in accordance with these Terms.

  3. Cancelling a Subscription. If something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction, we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period.  To cancel, you can send an email to support@imagica.ai or submit a ticket at https://imagica.zendesk.com/hc/en-us. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel a monthly or annual Subscription, your right to use the Subscription Services will continue until the end of your then current Subscription period and will then terminate without further charges.

  4. Downgrading a Business Tier Subscription. If you are a Business tier subscriber and you downgrade your Subscription, you may lose certain privileges, like the ability to charge End-Users for Apps. Any Paid Apps you have created will become Free Apps (each defined below). More information about the effect of downgrading a subscription may be found at https://imagica.zendesk.com/hc/en-us.

  1. Apps and End-Users.
  1. You acknowledge and agree that Brain, in the course of acting as agent for you, is hosting the Apps and is allowing the download of the Apps by End-Users, on your behalf. All of the Apps shall be marketed by Brain, on your behalf, to End-Users at prices identified in a price tier and designated by you, in your sole discretion, from the pricing schedule set forth by Brain, which may be updated from time to time by Brain. Apps that you allow to be used and accessed by End-Users free of charge are called “Free Apps.” If you are a Business tier subscriber, Apps that you charge End-Users to use and access are called “Paid Apps.” Only Business tier subscribers may create Paid Apps. As your agent, Brain shall be solely responsible for the collection of all prices payable by End-Users for Apps acquired by those End-Users.
  2. In the event that the sale or delivery of any of the Apps to any End-User is subject to any sales, use, goods and services, value added, telecommunications or other similar tax or levy, under applicable law, Brain will collect and remit that tax for sales of the Apps to End-Users. If the tax categorization of your Apps is deemed to be inaccurate by any tax authority, you are solely responsible for the tax consequences. You shall indemnify and hold Brain harmless against any and all claims by any tax authority for any underpayment or overpayment of any sales, use, goods and services, value added, telecommunications or other tax or levy, and any penalties and/or interest thereon.
  3. For sales of Apps to End-Users, Brain shall be entitled to a commission equal to thirty percent (30%) of all prices payable by each End-User in consideration for its services as your agent.

For purposes of determining the commissions to which Brain is entitled under this Section 11 (c), the prices payable by End-Users shall be net of any and all taxes or other government levies, including any and all taxes or other, similar obligations of you, Brain or any End-User relating to the delivery or use of the Apps collected, as provided in Section 11 (b).

Upon collection of any amounts from any End-User as the price for any App delivered to that End-User, Brain shall deduct the full amount of its commission with respect to that App, and any taxes collected by Brain, if applicable, and shall remit to you, or issue a credit in your favor, as the case may be, the remainder of those prices in accordance with Brain standard business practices.

In the event that Brain’s commission or any price payable by any End-User for any of the Apps is subject to (i) any withholding or similar tax; or (ii) any sales, use, goods and services, value added, telecommunications or other tax or levy not collected by Brain under Section 11 (b) hereof; or (iii) any other tax or other government levy of whatever nature, the full amount of that tax or levy shall be solely for your account, and shall not reduce the commission to which Brain is entitled under these Terms.

  1. Brain has no obligation to provide you or your users with support, software upgrades, enhancements or modifications to the Environment, Brain Functionality or the Platform. You understand and agree that you are solely responsible for providing user support and any other technical assistance for your Apps. Brain may redirect users and potential users of your Apps to you for purposes of answering general App inquiries and support questions.
  1. Unpublishing Apps.
  1. You may choose to remove your Apps from the Platform or to make your Apps unavailable (“Unpublish”) at your discretion and subject to the functionality of the Platform. If you Unpublish a Free App, it will be removed from, or no longer be available via, the Platform. If you are a Business tier subscriber and you Unpublish a Paid App, no new End-Users will be able to subscribe to that Paid App once it is Unpublished. End-Users who have already subscribed to that Paid App will be able to access and use it until the end of their subscription period, after which it will be removed from, or no longer be available via, the Platform.
  1. End-User Licensing.
  1. You will create, at your sole expense, an instance of the App using the Environment that will be hosted on the Platform and deliver to Brain associated metadata, in a format and manner prescribed by Brain. Metadata you deliver to Brain in accordance with this Section 13(a) will include: (i) any copyright or other intellectual property rights notices; (ii) your privacy policy; (iii) your end-user license agreement (“EULA”), if any, in accordance with Section 13(c). 
  2. The parties acknowledge and agree that Brain shall not acquire any ownership interest in or to any of the Apps, and title, risk of loss, responsibility for, and control over the Apps shall, at all times, remain with you. Brain may not use any of the Apps for any purpose, or in any manner, except as specifically authorized in these Terms.
  3. You may deliver to Brain your own EULA for any App, in accordance with Section 13(a); provided, however, that your EULA must include and may not be inconsistent with the minimum terms and conditions specified on Exhibit B to these Terms, and must comply with all applicable laws in all regions where you wish Brain to allow End-Users to access and use that App. In the event that you do not furnish your own EULA for any App to Brain, you acknowledge and agree that each End-User’s use of that App shall be subject to Brain’s standard EULA, attached as Exhibit A.
  4. You hereby acknowledge that the EULA for each of the Apps is solely between you and the End-User and conforms to applicable law, and Brain shall not be responsible for, and shall not have any liability whatsoever under, any EULA or any breach by you or any End-User of any of the terms and conditions of any EULA.
  1. Termination of Account/Access. We may terminate or suspend your account and bar access to the Environment, Brain Functionality or the Platform immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms.  If you wish to terminate your account, you may contact us at support@imagica.ai. Upon any termination or cancellation of your account, the following Sections will survive: 4, 10 (only for amounts due and owing to Brain prior to the termination), 11(b), 11(d), 13 (d), and 14-27. Upon termination of your account, any Free Apps created by you will be removed from the Platform immediately. If you are a Business tier subscriber, no new End-Users will be able to subscribe to any existing Paid Apps created by you. End-Users who have already subscribed to your Paid Apps will be able to use and access them until the end of their subscription period, after which the Paid Apps will be removed from, or no longer be available via, the Platform.
  2. Indemnification. You will defend, indemnify and hold harmless Brain and its licensors, and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your, or any person using your Credentials’, access to or use of the  Environment, Brain Functionality or Platform; (b) the development, distribution or dissemination of your Apps, including any claim that any of your Apps infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights of a third party; (c) any acts or omissions of your End-Users, including with respect to any use of the Apps; (d) Content created or disseminated by you or any of your customers; or (e) your violation of these Terms.
  3. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BRAIN, OR ITS DIRECTORS, EMPLOYEES, PARTNERS, AGENTS, SUPPLIERS, OR AFFILIATES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE ENVIRONMENT, THE BRAIN FUNCTIONALITY, THE PLATFORM OR APPS; OR (B) ANY CONDUCT OR CONTENT OF ANY THIRD-PARTY WITH RESPECT TO YOUR APPS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL BRAIN’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE ENVIRONMENT, THE BRAIN FUNCTIONALITY, THE PLATFORM OR APPS EXCEED ONE THOUSAND DOLLARS ($1000) OR THE TOTAL VALUE OF THE COMMISSIONS RETAINED BY BRAIN WITH RESPECT TO YOUR APPS IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, WHICHEVER IS THE GREATER.

  1. Warranty Disclaimers. 

  1. THE ENVIRONMENT, THE BRAIN FUNCTIONALITY, THE PLATFORM AND THE APPS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Environment, the Brain Functionality, the Platform and the Apps will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Environment, the Brain Functionality, the Platform and the Apps.
  2. Similar to any new technology that leverages AI models, the Environment, the Brain Functionality, the Platform and the Apps have certain limitations.

TO THE EXTENT YOUR JURISDICTION DOES NOT ALLOW LIMITATIONS ON WARRANTIES, THIS LIMITATION MAY NOT APPLY TO YOU, YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF THE ENVIRONMENT, BRAIN FUNCTIONALITY AND PLATFORM SHALL BE TO DISCONTINUE USING THE ENVIRONMENT, BRAIN FUNCTIONALITY AND PLATFORM.

  1. Availability, Errors and Inaccuracies. We are constantly updating the Environment, the Brain Functionality, and the Platform and we may experience delays in making such updates. The information found on therein or in other materials may contain errors or inaccuracies and may not be complete, current, or available at times. We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.
  2. Confidential Information.  You may be given access to certain non-public information, software code and/or specifications relating to the Environment, the Brain Functionality or the Platform (“Confidential Information”), which is confidential and proprietary to Brain.  You may use this Confidential Information only as necessary for exercising your rights granted in these Terms. You may not disclose any of this Confidential Information to any third party without Brain’s prior written consent.  You agree to protect this Confidential Information from unauthorized use, access, or disclosure in the same manner that it would use to protect your own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
  3. Dispute Resolution for Individuals.
  1. Mandatory Arbitration of Disputes. If you are accessing and using the Services as an individual user, we each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Environment or Platform (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Brain agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Brain are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
  2. Exceptions. As limited exceptions to Section 20 (a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
  3. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.

Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.

  1. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration, we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
  2. Injunctive and Declaratory Relief. Except as provided in Section 20 (b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
  3. Class Action Waiver. YOU AND BRAIN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
  4. Severability. With the exception of any of the provisions in Section 20(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
  1. Dispute Resolution for Entities. If you are accessing and using the Services as or on behalf of a company or other legal entity, any Dispute will be resolved exclusively in the state and federal courts identified in Section 22.
  2. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law (with respect to Section 20 only), and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 20 (“Dispute Resolution for Individuals”), the exclusive jurisdiction for all Disputes that you and Brain are not required to arbitrate will be the state and federal courts located in San Mateo County, California, and you and Brain each waive any objection to jurisdiction and venue in such courts.
  3. Reservation of Rights. Brain and its licensors exclusively own all right, title and interest in and to the Environment, Brain Functionality and Platform, including all associated intellectual property rights. You acknowledge that the Environment, Brain Functionality and Platform are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Environment, Brain Functionality and Platform.
  4. Waiver. Brain’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Brain. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
  5. Notices. Any notices or other communications provided by Brain under these Terms will be given: (i) via email; or (ii) by posting to the Platform. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
  6. Relationship of the Parties. Nothing contained in these Terms shall be construed to constitute either party as a partner, joint venture, employee or agent of the other party, nor shall either party hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both parties that each shall remain independent contractors responsible for its own actions.
  7. Entire Agreement. These Terms constitute the entire agreement between you and Brain and govern the terms and conditions of your use of the Environment, the Brain Functionality and the Platform and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Brain with respect thereto. Notwithstanding the foregoing, you may also be subject to additional terms and conditions, posted policies (including but not limited to the Privacy Notice), guidelines, or rules that may apply when you use any Brain websites.
  8. Contact Us. If you have any questions about these Terms, please contact us at support@imagica.ai.

EXHIBIT A

STANDARD EULA FOR APPS DISTRIBUTED VIA THE ENVIRONMENT

Apps made available through the Platform are licensed, not sold, to you. Your license to each App is subject to your prior acceptance of either this End User License Agreement (“Standard EULA”), or a custom end user license agreement (“Custom EULA”) between you and the third party App provider (“App Owner”), if one is provided. Your license to any Apps created or owned by Brain under this Standard EULA is granted by Brain, and your license to any third party App under this Standard EULA or Custom EULA is granted by the applicable App Owner.  The App Owner or Brain as applicable (“Licensor”) reserves all rights in and to the App not expressly granted to you under this Standard EULA.

  1. License. Licensor grants to you a nontransferable license to use the App as permitted by the Terms of Service governing the use of the Imagica Platform (“Imagica Platform Terms”). The terms of this Standard EULA will govern any content, materials, or services accessible from or purchased within the App as well as upgrades provided by Licensor that replace or supplement the original App, unless such upgrade is accompanied by a Custom EULA. You may not transfer, redistribute or sublicense the App. You may not copy (except as permitted by this license and the Imagica Platform Terms), reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the App).
  2. Consent to Use of Data. You agree that Licensor may collect and use technical data and related information related to the App. Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.
  3. Termination. This Standard EULA is effective until terminated by you or Licensor. Your rights under this Standard EULA will terminate automatically if you fail to comply with any of its terms. 
  4. External Services. The App may enable access to Licensor’s and/or third-party services and websites (collectively and individually, "External Services"). You agree to use the External Services at your sole risk. Licensor is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by any App or External Service, including but not limited to financial, medical and location information, is for general informational purposes only and is not guaranteed by Licensor or its agents. You will not use the External Services in any manner that is inconsistent with the terms of this Standard EULA or that infringes the intellectual property rights of Licensor or any third party. You agree not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and that Licensor is not responsible for any such use. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws. Licensor reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you. 
  5. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP AND ANY SERVICES PERFORMED OR PROVIDED BY THE APP ARE PROVIDED "AS IS" AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. APPSOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT YOUR JURISDICTION DOES NOT ALLOW LIMITATIONS ON WARRANTIES, YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF THE APP SHALL BE TO DISCONTINUE USING THE APP.

SIMILAR TO ANY NEW TECHNOLOGY THAT LEVERAGES AI MODELS, APPS HAVE CERTAIN LIMITATIONS.  YOU ACKNOWLEDGE AND AGREE THAT THE QUALITY OF YOUR NATURAL LANGUAGE INPUTS WILL IMPACT THE QUALITY OF THE APPS. WE DO NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR CONTENT ON THE APPS OR THAT THEY WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY SPECIFIC RESULTS.

  1. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Licensor’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one-hundred dollars ($100.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
  2. You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
  3. The App and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
  4. Governing Law and Forum Choice. This Standard EULA and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 10 (“Dispute Resolution,”) the exclusive jurisdiction for all Disputes (defined below) that you and Licensor are not required to arbitrate will be the state and federal courts located in the County of San Mateo, California, and you and Licensor each waive any objection to jurisdiction and venue in such courts.
  5. Dispute Resolution.  
  1. Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to this Standard EULA or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Licensor agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Standard EULA, and that you and Licensor are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Standard EULA.
  2. Exceptions. As limited exceptions to Section 10 (a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
  3. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Standard EULA. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.

Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.

  1. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration, we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
  2. Injunctive and Declaratory Relief. Except as provided in Section 10 (b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
  3. Class Action Waiver. YOU AND LICENSOR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
  4. Severability. With the exception of any of the provisions in Section 10 (f) of this Standard EULA (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of this Standard EULA is invalid or unenforceable, the other parts of this Standard EULA will still apply.

EXHIBIT B

Instructions for Minimum Terms of End-User License Agreement

1. Acknowledgement: You and the End-User must acknowledge that the EULA is concluded between you and the End-User only, and not with Brain, and you, not Brain, are solely responsible for the App and its content. The EULA may not provide for usage rules for Apps that are in conflict with the Imagica Platform Terms. 

2. Scope of License: The license granted to the End-User for the App must be limited to a non-transferable license to use the App as permitted by the Imagica Platform Terms. 

3. Maintenance and Support: You must be solely responsible for providing any maintenance and support services with respect to the App, as specified in the EULA, or as required under applicable law. You and the End-User must acknowledge that Brain has no obligation to furnish any maintenance and support services with respect to the App. 

4. Warranty: You are solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. The EULA must provide that, in the event of any failure of the App to conform to any applicable warranty, the End-User may notify Brain, and Brain will refund the purchase price for the App to that End-User; and that, to the maximum extent permitted by applicable law, Brain will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be your sole responsibility. 

5. Product Claims: You and the End-User must acknowledge that you, not Brain, are responsible for addressing any claims of the End-User or any third party relating to the App or the End-User’s possession or use of that App, including, but not limited to: (i) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (ii) claims arising under consumer protection, privacy, or similar legislation. The EULA may not limit your liability to the End-User beyond what is permitted by applicable law. 

6. Intellectual Property Rights: You and the End-User must acknowledge that, in the event of any third party claim that the App or the End-User’s possession and use of that App infringes that third party’s intellectual property rights, you, not Brain, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. 

7. Legal Compliance: The End-User must represent and warrant that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties. 

8. Developer Name and Address: You must state in the EULA your name and address, and the contact information (telephone number; e-mail address) to which any End-User questions, complaints or claims with respect to the App should be directed. 

9. Third Party Beneficiary: You and the End-User must acknowledge and agree that Brain, and Brain’s subsidiaries, are third party beneficiaries of the EULA, and that, upon the End-User’s acceptance of the terms and conditions of the EULA, Brain will have the right (and will be deemed to have accepted the right) to enforce the EULA against the End-User as a third party beneficiary thereof.