Braeban Aeronautics Terms of Use

Previous versions:

• June 29, 2022 – September 20, 2023

Braeban Aeronautics LLC TERMS OF USE

LAST UPDATED: September 20, 2023

These Braeban Terms of Use (the “Terms of Use”) govern the use of Products and Services by you (“Customer” or “Customer’s”). By using or accessing, or by acquiring the Products or Services (“Offerings”), Customer and Customer’s Authorized Users accept and agree to these Terms of Use and all other applicable terms and conditions, policies, or disclaimers found referenced in these Terms of Use (collectively the “Enterprise Terms of Use”). Braeban encourages Customer to read these Enterprise Terms of Use incorporated by reference herein, carefully.

BY USING ANY OF THE OFFERINGS, CUSTOMER AGREES TO THESE ENTERPRISE TERMS OF USE; IF CUSTOMER DOES NOT AGREE, IT SHALL IMMEDIATELY CEASE ITS USE OF THE OFFERINGS.

Braeban reserves the right to make changes to these Enterprise Terms of Use at any time and at Braeban’s sole discretion. If Customer does not agree with such changes, Customer should cease using the Offerings. Customer’s continued use of the Offerings after any such changes to the Enterprise Terms of Use shall be deemed acceptance of any such new or modified terms. These Enterprise Terms of Use do not grant any license rights or entitlements to the Offerings, which must be purchased separately pursuant to an Order Form. Customer’s license rights to Software (if any) are provided subject to Braeban’s End User License Agreement (“EULA”).

All capitalized terms used in this agreement have the same meaning in these Enterprise Terms of Use as in the EULA, unless expressly defined otherwise in these Enterprise Terms of Use.

1.             Use of Offering.

1.1           Account. To access and use the Offerings, the Authorized User must provide certain information required in order for Braeban to create and administer their Account, including name, email address, and billing information (“Account Data”). Customer is responsible for maintaining the confidentiality of the Account, including any API tokens Braeban provides that enable Authorized Users to send data to Offerings or access the Account (collectively, “Credentials”). Customer is solely responsible for all activities that occur under Customer’s Account. Customer is responsible for all Authorized Users’ login credentials. Customer must promptly notify Braeban of any unauthorized use of or access to Offerings or if any Credentials are lost, stolen, or disclosed to an unauthorized third party, or otherwise compromised. Braeban may suspend or terminate Customer’s Account if any information provided during the registration process or thereafter is or becomes inaccurate, false, or misleading. Thereafter, Customer may be unable to use the Offerings that Customer purchased. Braeban may also temporarily suspend Customer’s account if Braeban reasonably suspects that Customer’s Credentials have been compromised for as long as is reasonably necessary to issue new Credentials and restore access to Customer’s Account.

1.2           Authorized Users. Only Authorized Users may access and use the Offerings. Employees and contractors working on behalf of and authorized by Customer or a Customer Affiliate (each an “Authorized User”) may access and use the Offerings. Customer will (i) inform Authorized Users of all of Customer’s own policies and practices that are relevant to the Authorized Users’ use of the Offerings; and (ii) obtain all rights, permissions and consents from Authorized Users and other Customer personnel or contractors that are necessary (x) to grant the rights and licenses set forth in this agreement, and (y) for the lawful use and operation of the Offerings.

1.3           Conditions of Use. Customer will use Offerings only in accordance with these Enterprise Terms of Use, the Braeban End User License Agreement, and (any applicable) Order Form, including any usage parameters, limitations, or restrictions. Customer agrees to use Offerings solely for Customer’s own personal or internal business use within the Authorized Territory and in accordance with applicable law. Customer may only permit Authorized Users working for its organization to use the Offerings.

1.4           Usage Limits and Overage Charges. Customer agrees that Authorized Users will not use Services beyond the Capacity that Customer has purchased for such Services and that Braeban may impose limits on usage of Services beyond that Capacity. If Customer exceeds its Capacity, Braeban may bill Customer in arrears at the then-current monthly rate for the Subscription plan with Capacity that is commensurate with the usage of the Service.

1.5           License to Host Customer Data.

Note: This Section, License to Host Customer Data, does not apply to Braeban X2D® or any other Products designated by Braeban as “offline.”

(a)            Customer Media. Customer retains all ownership and other rights in any media that it captures using the Offerings or that Customer transmits to, uploads to, processes on, or stores in its instance of the SaaS Services or on its Account, including images, audio, text, and other works of authorship (“Customer Media”). Nothing in this agreement will be deemed to restrict any rights that Customer may have to use and exploit Customer Media. If Customer purchases SaaS Services or otherwise uploads Customer Media to Braeban, Customer represents and warrants that it or its licensors own all right, title, and interest in and to Customer Media and have all rights in the Customer Media necessary and sufficient to transmit to, upload to, run on, process on, or store in the SaaS Service, and to grant the rights to Braeban contemplated by this agreement. Customer is solely responsible for all Customer Media, including but not limited to the development, operation, maintenance, and use of all Customer Media and the results it obtains using Customer Media.

(b)           Metadata. Customer’s use of the Offerings may also generate device and network information including application telemetry, temperature profiles, battery status, IP addresses or configurations, stored sessions, open ports, account credentials, network metadata, network connectivity, device operating system, status, version, and configuration information, and other system-level information that is not accessible in the ordinary course of use to end users of Braeban Offerings (collectively “Metadata”).

(c)            License Grant. Customer’s Account Data, Customer Media, and Metadata are collectively referred to as “Customer Data.” Customer hereby grants to Braeban a non-exclusive, worldwide, royalty-free, fully-paid and transferable license to collect, access, process, reproduce, modify, transmit, store, and otherwise use any Customer Data provided by Customer to Braeban (i) to administer, develop, improve and support Customer’s use of the Offerings and (ii) in support of Braeban’s development of related technologies, solutions and devices in accordance with Braeban’s standard data retention policies and procedures, and these Enterprise Terms of Use.

(d)           FERPA. IF CUSTOMER IS A SCHOOL OR EDUCATOR IN THE UNITED STATES AND SEEKS TO ALLOW ITS STUDENTS TO USE THE OFFERINGS IN A MANNER SUBJECT TO THE FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (“FERPA”) OR ANY SUBSTANTIALLY SIMILAR STATE OR LOCAL LAW RELATING TO STUDENT PRIVACY, CUSTOMER HEREBY DESIGNATES Braeban AS A SCHOOL OFFICIAL WITH A LEGITIMATE EDUCATIONAL INTEREST IN ANY EDUCATION RECORDS (AS DEFINED IN FERPA) THAT Braeban IS REQUIRED TO CREATE, ACCESS, RECEIVE, OR MAINTAIN IN ORDER TO FULFILL ITS OBLIGATIONS UNDER THIS AGREEMENT. Braeban SHALL COMPLY WITH FERPA AS TO ANY SUCH EDUCATION RECORDS AND IS PROHIBITED FROM REDISCLOSURE OF THE EDUCATION RECORDS EXCEPT AS PROVIDED FOR IN THIS AGREEMENT OR OTHERWISE AUTHORIZED BY FERPA OR CUSTOMER IN WRITING.

1.6           Data Privacy and Security. The security of Customer Data is very important to Braeban. Braeban takes commercially reasonable technical and organizational measures designed to protect the confidentiality, integrity, and availability of Customer Data in accordance with the best practices recommended by our cloud storage and computing providers and their respective shared responsibility models. Please take advantage of the security features provided within the Offerings, safeguard Customer’s credentials, and report any suspected security incidents to us. In order to provide the Offerings, Braeban may process technical and related personal information related to Customer’s use of the Offerings, which may include application telemetry, internet protocol address and configurations, stored sessions, open ports, account credentials, hardware identification numbers or other factors, system status, information identifying operating systems, application software, and peripheral hardware, and other non-personally identifiable data. Such data will be used to facilitate the provisioning of Updates, Software, Services, and invoicing. Braeban may transfer such information to its processors, suppliers, or affiliates as reasonably necessary in order to provide the Offerings.

Braeban’s collection, use, and sharing of personal information are governed by its Privacy Policy. Braeban will, at all times, process any personal information shared by Customer as a “service provider” within the meaning of the California Consumer Privacy Act (“CCPA”). Braeban will not further collect, sell, or use any such personal information except as necessary in order to provide the Offering, which may include disclosures to our own service providers or contractors.

1.7           Modifications. Braeban may change the Offerings and associated content, interfaces, and features from time to time, without prior notice to Customer.

1.8           End of Life. Braeban may discontinue the provision of any Offerings (or portion thereof) in its sole discretion in accordance with the Braeban Product End of Life Policy, which is available at https://www.Braeban.com/legal and which is incorporated by reference herein.

2.             Services.

Customer’s access and use rights to Services will be set forth in an Order Form. Services are subject to the following terms and conditions in addition to those non-conflicting provisions set forth in the Order Form:

2.1           Subscription Term Duration. Unless otherwise specified on the Order Form, each Subscription Term begins with the initiation of the applicable Services and shall initially continue for the period specified in the applicable Order Form, or if no such period is specified, then for one (1) year.

2.2           Provision of Services. Braeban will render Services in accordance with this agreement and each Order Form, so long as Customer timely pays all amounts owed hereunder. Support Services will be rendered during the applicable Support Terms purchased by Customer. Braeban has no obligation to provide any service other than SaaS Services, Professional Services, Support Services, and Training Services that are purchased by Customer pursuant to an Order Form.

2.3           Capacity. Offerings are sold with the Capacity specified in the Order Form or, if not so specified, with the applicable default Capacity specified in the Product Guide. Braeban will credit any unused Capacity under a previous Subscription to an upgraded Subscription. Customer may downgrade a Subscription at any time to provide less Capacity, but any such downgrade (and any applicable reduction in the Fees payable) will only take effect upon renewal of the then-current Subscription Term. Capacity applicable to a particular Advanced Software Package or Subscription must be consumed during the current License Term or Subscription Term, and unused Capacity will not be carried forward after renewal.

2.4           SaaS Services. SaaS Services consist of making specified software available to Customer online as a service during the applicable Subscription Term, as set forth in any applicable Order Form. Each SaaS Service will include at least the functionality described for that service in the Order Form or in the Product Guide in effect at the time the particular SaaS Services are purchased. Braeban may update the Product Guide (and the functionality of the applicable SaaS Services) at its sole discretion.

2.5           Professional Services. The scope of Professional Services will be set forth in the applicable Order Form or statement of work (collectively, “SOW”) specifying the Professional Services to be provided, the deliverables to be provided, a schedule for delivery, and payment arrangements.

2.6           Support Services. Support Services consist of: (i) providing Customer’s named Administrators (as defined below) with consultation in English, via telephone, chat, and email, during Braeban’s normal business hours to assist with any Errors encountered by Customer in using the supported Offering; and (ii) making reasonable efforts to correct any Error in supported Offerings, all in accordance with Braeban’s support policies published on its website, as updated from time to time. Errors do not include, and Braeban has no obligation to correct, malfunctions caused in whole or in part by the operation of unsupported third-party products or the integration of any Offerings with or into unsupported third-party products, or the use of Offerings other than in accordance with the applicable documentation provided by Braeban. Braeban may in some cases provide Updates to Customers who have purchased Support Services, on a when-and-if-available basis, as specified in the EULA. No other Support Services are included under these Terms, including correction of Errors in or affecting any Offerings other than those for which Support Services have been purchased, as set forth on the Order Form. Upon request from Braeban, Customer will designate up to three (3) of its employees to assist with the administration of the Services on its behalf and serve as points of contact in communicating with Braeban (“Administrators”).

2.7           Training Services. Braeban will provide Training Services remotely or at the location set forth in the applicable Order Form. If no location is specified in the Order Form, the training will be provided at a mutually agreed upon location to be determined and confirmed in writing. Unless otherwise specified in the Order Form, for onsite, virtual and e-learning training, Customer is responsible for testing all necessary facilities and systems prior to the scheduled training to enable Braeban to provide the training.
Training dates must be confirmed two or more weeks in advance of the training date. Braeban may re-schedule training at any time prior to the training start date without liability. If Braeban is aware that there is a need to reschedule, then Braeban will make a reasonable effort to notify the Customer at least one week in advance. In-person training must be initiated within nine months of the Order Form date and completed within one year of the Order Form date, provided however that if in-person training is not completed within one year due to rescheduling by Braeban, the time for completion will be extended for a time period commensurate with the Braeban-initiated delay.

Onsite, virtual and e-learning training is only valid for the number of courses, dates and times (including the start and end date), locations, delivery mechanisms (i.e., onsite, virtual or other), and number of students (participants) specified in the Order Form. Training content will be substantially in line with the relevant training description set forth in the Order Form. Ownership of all copyright and other intellectual property rights in any training course material or other documentation, technical information, and know-how (together “Braeban Proprietary Information”) provided to training participants or otherwise to Customer remains the sole property of Braeban.

2.8           SaaS Service Level Agreement. Braeban offers the following 99.9% uptime Service Level Agreement (“SLA”) with respect to the SaaS Services.

(a)            Definitions

For purposes of this SLA, the following terms have the meaning ascribed to each term below: 

“Downtime” means the cumulative time period during which Customer is unable to log into the SaaS Services due to failure(s) in the SaaS Services, as timely reported by Customer and verified by Braeban, as provided below. Hardware failures are not Downtime, but may be covered under Braeban’s Limited Warranty.

“Monthly Uptime Percentage” means the total number of minutes in a calendar month (excluding Scheduled Maintenance) minus the number of minutes of Downtime suffered in a calendar month, and minus initiated operations such as restart, stop, start, failover, scale compute, and scale storage, divided by the total number of minutes in a calendar month.

“Scheduled Maintenance” means the time period during which Braeban intentionally takes the SaaS Services offline to perform maintenance or upgrades. Scheduled Downtime will be communicated to Customer not less than 48 hours in advance via the SaaS Services.

“Service Credit” means days of Service added to the end of the Service term, at no charge to Customer as follows:

Uptime	Days Credited
< 99.9% – ≥ 99.0%	3
< 99.0% – ≥ 95.0%	7
< 95.0%	15

 

Service credits (i) are not refunds; (ii) can’t be exchanged for a cash amount; (iii) are capped at a maximum of 30 days of paid service; (iv) require Customer to have paid any outstanding invoices; and (v) expire upon termination of the applicable Subscription.

(b)           Service Level and Claims Process

Braeban’s will maintain at least 99.9% Monthly Uptime Percentage (the “Service Level”). If Customer’s Monthly Uptime Percentage falls below the Service Level in a given month, Customer may request a Service Credit by contacting Braeban Customer Service. Claims may be made on a calendar-month basis only and must be submitted within 15 calendar days after the end of the applicable month, except where a Subscription ends on a date other than the last day of a calendar month, in which case any claim related to that Subscription must be submitted within 15 calendar days after the Subscription end date. All claims will be verified against Braeban’s system records. If Braeban and Customer disagree in good faith as to whether the SaaS Services fell below the Service Level in a given month, Braeban will provide to Customer a record of the availability for the applicable period upon request.

(c)            Maximum Service Credit

The aggregate maximum amount of Service Credit to be issued by Braeban to Customer for all Downtime that occurs in a single calendar month will not exceed 30 days.

(d)           Exclusions

The SLA does not apply to any SaaS Services offered to Customer on a Trial or Beta basis, any SaaS Services that expressly exclude this SLA (as stated in the documentation for such services), or any outages or performance issues caused by; (iii) resulting from Customer’s violation of the restrictions or Customer responsibilities set forth in the TOU;

•     Any SaaS Services that expressly exclude this SLA (as provided in the Agreement or documentation for such SaaS Services).
•     Beta Services or Features;
•     Onboard Software;
•     Any Hardware, Software or Service that has been discontinued pursuant to Braeban’s End of Life Policy.
•     Performance issues caused by or resulting from:

○      Factors described in the “Force Majeure” section of the Agreement;

○      Customer’s equipment or third party equipment, or both (not within the primary control of Braeban);

○      Customer’s failure to adequately safeguard Customer’s Credentials;

○      Customer’s failure to adhere to any required configurations, use supported platforms, or follow any policies for acceptable use,

○      Customer’s use of the Products or Services in a manner inconsistent with the features and functionality of the Products or Services as provided in the Product Guide or our published guidance;

○      Faulty input, instructions, or arguments; or

•     Use of services, hardware, or software not provided by Braeban, including, but not limited to, issues resulting from inadequate bandwidth or related to third-party software or services.

(e)            Exclusive Remedy

This SLA states Customer’s sole and exclusive remedy for any failure by Braeban to meet the Service Level.

2.9           Braeban Care. If Customer purchases Braeban Care service from Braeban, then, in addition to these Enterprise Terms of Use, Customer’s Braeban Care service is also governed by the Braeban Care Terms of Service. The Braeban Care Terms of Service will govern to the extent of any express conflict with these Enterprise Terms of Use.

2.10        Website Terms of Use. Customer’s use of Braeban website services shall be subject the Braeban’s Website Terms of Use, which shall be in addition to these Enterprise Terms of Use.

3.             Intellectual Property.

3.1           Intellectual Property of Customer. If Customer purchases Professional Services, Customer hereby grants to Braeban a non-exclusive, royalty-free right and license during the term of this agreement to use Customer-provided intellectual property, information, software, content, or other materials (“Customer Property”) for the sole purpose of performing the Professional Services. Nothing in this agreement conveys to Braeban any title or interest in or to Customer Property. In performing Professional Services for Customer, Braeban may use graphics, data, application program interfaces, database structures, diagrams, images, tables, sounds, video, computer programs, scripts, methodologies, documentation, computer code, or algorithms created, licensed, or otherwise acquired by Braeban before the Effective Date or independently of providing Professional Services to Customer (collectively, “Braeban Tools”). Unless otherwise specified in the applicable Order Form, Braeban and its licensors retain all intellectual property and other rights to Braeban Tools and any inventions, works of authorship, trade secrets, know-how or subject matter that Braeban makes or creates while providing Professional Services.

3.2           Software License. Customer agrees that all worldwide patent, copyright and other intellectual property rights in the Offerings, and all copies of the software however made (including copies pre-installed on the hardware purchased by Customer) are the exclusive property of Braeban and its suppliers. All Software is licensed to Customer subject to the EULA, not sold. Customer will not circumvent any technological measure that controls access to Software or Services. Braeban reserves all rights not expressly granted in this agreement, and no rights or licenses shall be deemed or interpreted to be granted or transferred hereunder, whether by implication, estoppel, or otherwise.

3.3           Reservation of Rights. Customer acknowledges and agrees that: (a) the Offerings, and Braeban Tools contain Braeban’s valuable intellectual property and are subject to and protected by patents, copyrights, trade secrets, and other intellectual property rights, throughout the world, of Braeban and its licensors; (b) such intellectual property rights shall continue to be exclusively owned by Braeban and its licensors; and (c) nothing in this agreement shall effect a transfer of such intellectual property rights to Customer.

3.4           Feedback. Customer may provide Braeban with any suggestions, comments, or other feedback regarding the Offerings (“Feedback”). Customer’s decision to provide Feedback is entirely voluntary. By providing Feedback, Customer assigns to Braeban all right, title, and interest (including any intellectual property rights) that Customer may have in such Feedback and acknowledges that Braeban may use (or not use) any such Feedback in any manner and for any purpose, without compensation to Customer and without implying or creating any interest on Customer’s part in any of Braeban’s Offerings.

4.             Mobile Apps.

If Customer installs and accesses any of the Mobile Apps that can be downloaded from an app store or app distribution platform, such as the Apple App Store® or Google Play™, (the “App Provider”), Customer acknowledges and agrees that: (a) these Enterprise Terms of Use are concluded between Customer and Braeban only, and not with the App Provider, and that Braeban, not the App Provider, are responsible for the Mobile Apps; (b) the Mobile Apps are licensed to Customer on a limited, non-exclusive, non-transferable basis, and without the right to sublicense, solely to be used in connection with the Offerings unless otherwise agreed to in a separate agreement between Customer and Braeban; (c) Customer will only use the Mobile Apps in connection with a Product that Customer owns or controls; (d) Customer acknowledges and agrees that the App Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile Apps; (e) in the event of any failure of the Mobile Apps to conform to any applicable warranty, including those implied by law, Customer may notify the App Provider of such failure; upon notification, the App Provider’s sole warranty obligation to Customer will be to refund to Customer the purchase price, if any, of the Mobile App; (f) Customer acknowledges and agrees that Braeban, and not the App Provider, is responsible for addressing any claims that Customer may have in relation to the Mobile Apps including, but not limited to: (i) product liability claims, (ii) any claim that the Mobile Apps fail to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation; (g) Customer acknowledges and agrees that, in the event of any third party claim that the Mobile Apps or Customer’s possession and use of the Mobile Apps infringe that third party’s intellectual property rights, Braeban, and not the App Provider, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim to the extent required by these Enterprise Terms of Use; (h) Customer represents and warrants that Customer is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Customer is not listed on any U.S. Government list of prohibited or restricted parties; (i) both Customer and Braeban acknowledge and agree that, in Customer’s use of the Mobile Apps, Customer will comply with any applicable third-party terms of agreement which may affect or be affected by such use; (j) both Customer and Braeban acknowledge and agree that the App Provider and its subsidiaries are third party beneficiaries of these Terms of Use, and that upon Customer’s acceptance of these Enterprise Terms of Use, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Enterprise Terms of Use against Customer as the third party beneficiary hereof; (k) Customer may not use the Mobile Apps in any manner in violation of or inconsistent with the usage rules for Mobile Apps in, or otherwise be in conflict with, the App Provider terms and conditions or any other applicable third-party terms and conditions; and (l) Customer shall direct any questions, complaints or claims with respect to the Mobile Apps to [email protected].

5.             Free Trials and Beta Services or Features.

5.1           Free Trials. Braeban may in its discretion provide Customer certain Offerings at no purchase charge for evaluation on a trial basis during a limited time period (“Trial Period”). At the conclusion of the Trial Period, Customer shall return the evaluation Offerings at Customer’s own cost. The Trial Period shall be thirty (30) days unless otherwise agreed in writing by Braeban. Braeban may terminate a Trial Period for any reason and without advanced notice. Use of Offerings under a Trial Period will be subject to the EULA. To initiate a Trial Period, Customer may be required to register through an online facility that Braeban provides. As a condition to such registration, Customer must accept additional terms that are presented at the outset of the registration. If Customer does not wish to accept these additional terms, Customer must not initiate the Trial Period. If Customer does not subscribe to a paid SaaS Service subscription at or before the end of the Trial Period, Braeban may in our discretion delete any data that Customer has stored on the SaaS Service. Braeban SHALL HAVE NO ANY LIABILITY WHATSOEVER ARISING OUT OF OR RELATING TO CUSTOMER’S USE OF ANY OFFERING UNDER A TRIAL PERIOD OR ON ANY OTHER TRIAL OR EVALUATION BASIS, INCLUDING ANY BETA SERVICES OR FEATURES.

5.2           Beta Services or Features. From time to time, Braeban may invite Customer to evaluate, at no charge, beta services or features that are under development (“Beta Services or Features”). Customer may accept or decline any such invitation at Customer’s sole discretion. Beta Services or Features will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or a description of similar import. Notwithstanding any contrary provision in the EULA or applicable Order Form, Customer acknowledges and agrees that Beta Services or Features may not be fully functional or reliable and are intended for evaluation purposes and not for production use. Customer access to any of the Beta Services or Features will be limited to six (6) months or such shorter time as Braeban may at its sole discretion specify. As a condition to accessing Beta Services or Features, Customer may be required to accept additional terms and conditions during an online process in which the features are activated, accessed, or used. If Customer does not wish to accept these additional terms, Customer should not activate, access, or use the Beta Services or Features. Braeban may in its sole discretion discontinue Beta Services or Features at any time without notice and may decline to incorporate them as production features of our Offerings.

5.3           DISCLAIMER OF WARRANTY AND LIABILITY. USE OF OFFERINGS PROVIDED ON A TRIAL BASIS AND BETA SERVICES OR FEATURES IS SOLELY FOR EVALUATION PURPOSES AND ENTIRELY AT CUSTOMER’S OWN RISK, NOTWITHSTANDING ANY CONTRARY PROVISION IN THESE TERMS OR APPLICABLE ORDER FORM. OFFERINGS PROVIDED ON A TRIAL BASIS AND BETA SERVICES ARE PROVIDED AS-IS, WHERE IS AND WITH NO WARRANTY WHATSOEVER.

6.             Safety and Compliance.

6.1           Safety and Operating Guide. Customer acknowledges that improper operation of unmanned aircraft systems may cause injury to persons or property. Customer covenants and warrants that it and its authorized users will at all times: (a) exercise reasonable care in using Offerings; (b) use Offerings only in accordance with the information and warnings set forth in the Safety and Operating Guide and any other published product materials, technical specifications, user manuals, maintenance guidelines, and support communications provided by Braeban from time to time; (c) use Offerings in full compliance with all applicable local, state, national and international laws and regulations related to the operation of unmanned aircraft systems in any territory of operation, including any applicable laws and orders with regard to privacy, pilot licensure, operating within visual line of sight (unless the Customer has received proper approval from a civil aviation authority waiving such limitation), detecting and avoiding other aircraft, and airspace restrictions (such as temporary flight restrictions issued by Federal Aviation Administration (FAA), the Civil Aviation Safety authority (CASA), the European Union Aviation Safety Agency (EASA), the International Civil Aviation Organization (ICAO), or other government agencies or other authorities); (d) obtain and maintain all licenses, consents, clearances, and authorizations required to operate unmanned aircraft systems before using Offerings; and (e) comply with all relevant flight limitations and restrictions that may be imposed during flights by any government agency or other authority.

6.2           Installation and Procedures. Customer acknowledges that improper installation of aircraft docking systems may cause significant bodily injury or death to persons or significant property damage. In addition to representations concerning use of the Offerings above, Customer covenants and warrants that it and its authorized users will at all times: (a) use its best judgment, which will be no less than commercially reasonable judgment, in installing and operating the aircraft docking system, (b) maintain the aircraft docking system, including but not limited to maintaining the integrity of its mounting, door and locking mechanisms, (c) enact sufficient safety procedures to prevent employee, contractor or bystander interference or injury, (d) ensure installation and use will only occur in environments consistent with all applicable laws including those pertaining to safety and employee and bystander well being, and (e) complete any and all safety procedures recommended by Braeban or that are commercially reasonable.

6.3           Use Restrictions. Customer covenants and warrants that neither Customer nor any person using Offerings on behalf of or as authorized by Customer will use Offerings: (a) outside of the Authorized Territory; (b) for any illegal purpose; (c) as a weapon or part of a weapons system, including for purposes of targeting a weapon, or (d) in any hazardous activity likely to result in death or injury to persons or injury to property.

6.4           Customer Responsibility. If Customer is a non-governmental entity, Customer will indemnify and hold harmless Braeban against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged breach of this Section.

7.             Other Limitations and Restrictions.

Customer shall not do (and shall not permit others to do) any of the following: (a) license, sublicense, sell, resell, rent, lease, transfer, or distribute Offerings to others, redistribute the Offerings to third parties as a service bureau, or allow third parties (other than Customer’s employees and individual contractors) to access the Offerings; (b) disassemble, reverse engineer, or decompile Software or the systems used by Braeban to render SaaS Services, or otherwise attempt to derive the source code of such Software or systems, except solely to the extent such activity is permitted under applicable law or this agreement; (c) modify SaaS Services; (d) remove or modify a copyright, trademark, logo or other proprietary rights notice or brand labeling on or in Offerings; (e) use Offerings to reproduce, distribute, display, transmit, or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (f) use Offerings to create, use, send, store or run viruses or other harmful computer code, files, scripts, agents or other programs or otherwise engage, in a malicious or criminal act or disrupt the security, integrity or operation of any computer system; (g) use Offerings other than as expressly permitted in these Terms of Use and the Order Form, including without limitation using the Offerings in excess of the limitations or restrictions specified in the applicable Order Form or in a manner that would violate the EULA; (h) use Offerings to develop a competing product or service; (i) disable, jailbreak, or otherwise circumvent any technological measures in Offerings that limit access or use of Services; (j) unlock, activate, access, or use any feature of Offerings for which Customer has not purchased a Subscription authorizing Customer to do so; (k) use offerings with any third-party products not expressly authorized by Braeban; (l) house, install, or otherwise locate offerings in locations constituting a hazard; or (m) abuse or harass Braeban personnel. Any breach of the foregoing obligations shall be deemed a material breach of the agreement. If Customer is a non-governmental entity, Customer will indemnify and hold harmless Braeban against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged breach of this Section. Use of Offerings for flight covered by 14 CFR Part 107 requires visual line of sight. Braeban does not represent, and does not include, unless specified in writing, the regulatory approvals necessary to obtain relevant waivers or authorizations for flight beyond visual line of sight with any of its Products.

8.             Benchmarking.

Customer will not publish or release any benchmarking or performance data applicable to Offerings, except to the minimum extent such publication or release is permitted under applicable law notwithstanding this restriction and then only with advance notice to Braeban including an explanation of the test procedures used to generate the benchmarking or performance data, which explanation is sufficiently detailed to reasonably permit Braeban to reproduce such tests.

9.             Third-Party Technology and Services.

Each of the Offerings may be compatible with third-party plugins, services, and other technology, including any service that uses Customer’s API token(s) to access Customer’s Braeban account (“Third-Party Technology”). Braeban may also make available, for purposes of convenience, links to third-party websites or applications that enable the download or use of Third-Party Technology. Braeban does not endorse and is not responsible or liable for the operation or functionality of the Offerings with, such Third-Party Technology. Customer is solely responsible for such use of any Third-Party Technology, including compliance with the terms and conditions governing the use of such Third-Party Technology. Customer enables, uses, or accesses them at Customer’s own risk. ANY THIRD-PARTY TECHNOLOGY DOWNLOADED BY CUSTOMER OR OTHERWISE OBTAINED OR USED IN CONNECTION WITH THE OFFERINGS IS DONE SO AT CUSTOMER’S DISCRETION AND RISK, AND CUSTOMER AND CUSTOMER’S AUTHORIZED USERS WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ALL CLAIMS AND CAUSES OF ACTION AGAINST Braeban WITH RESPECT TO SUCH USE, INCLUDING ANY DAMAGE TO COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH THIRD-PARTY TECHNOLOGY.

10.           Limited Warranty.

The only warranties that Braeban provides with respect to any of the Offerings are (i) the Limited Warranty or (ii) Braeban’s warranty that the Hardware will arrive in an operational state (the “DOA Warranty”). Unless otherwise specified on the Order Form, (a) the Limited Warranty is only applicable for Offerings that are purchased and used within the United States; (b) the DOA Warranty is applicable for Offerings that are purchased and used within Australia, Canada, Japan, and New Zealand; and (c) no warranty is provided (and the Offerings are sold “AS-IS”) for Offerings that are purchased or used outside of the Authorized Territory. In order to make a valid claim under the DOA warranty that the Hardware arrived in a non-operational state (“Dead-on-Arrival Hardware”), Customer must report to Braeban within thirty (30) days of the original delivery date of such Dead-on-Arrival Hardware and return such Dead-on-Arrival Hardware in accordance with Braeban instructions at Customer’s expense. Within fourteen (14) business days of Braeban’s confirmation that the Dead-on-Arrival Hardware is non-operational, Braeban shall reimburse Customer for Customer’s shipping costs and ship, at Braeban’s sole expense, a replacement Product to Customer. The Limited Warranty is subject to the Braeban Product End of Life Policy which is available at https://www.Braeban.com/legal. Neither the Limited Warranty nor the DOA Warranty applies to any Offering provided under a Trial Period or on any other trial or evaluation basis, including any Beta Services or Features (as each is defined in these Enterprise Terms of Use).

11.           Disclaimer of Warranty.

EXCEPT FOR THE LIMITED WARRANTY (WHERE APPLICABLE), OFFERINGS PROVIDED HEREUNDER ARE “AS IS” AND WITHOUT WARRANTY OF ANY KIND. Braeban HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS, OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT OFFERINGS ARE ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION OR ACHIEVE ANY PARTICULAR RESULT. CUSTOMER ASSUMES THE ENTIRE RISK ARISING OUT OF THE PERFORMANCE OR USE OF OFFERINGS AND ANY THIRD-PARTY TECHNOLOGY, INCLUDING RELIANCE ON ANY INFORMATION GENERATED THROUGH USE OF OFFERINGS. TO THE EXTENT THAT Braeban MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

12.           Term and Termination.

12.1        Term. This agreement is effective upon Customer’s first purchase of Offerings and shall continue until terminated pursuant to this Section, Term and Termination.

12.2        Termination for Cause. If Customer breaches this agreement (including by failing to pay amounts owed when due) Braeban may, in addition to its other rights and remedies hereunder or at law: (i) terminate this agreement for cause in its entirety, or (ii) terminate for cause one or more Order Forms, Subscriptions, Advanced Software Packages, Capacities, or SOWs related to the breach only. Customer may terminate this agreement in its entirety for cause upon thirty (30) days written notice to Braeban of a material breach of this agreement if such breach remains uncured at the expiration of such period.

12.3        Termination for Convenience. Either party may terminate this agreement for convenience upon thirty (30) days’ notice if at the time of such notice there are no Order Forms, Subscriptions, Advanced Software Packages, or SOWs in effect.

12.4        Suspension. Braeban may suspend or limit Customer’s Account and use of Offerings as it deems reasonably necessary to prevent, investigate, or otherwise address any suspected breach of this agreement including these Enterprise Terms of Use.

12.5        Effect of Termination.

(a)            Upon expiration or termination of this Agreement for any reason: (i) all Order Forms, Subscriptions, Advanced Software Packages subject to a non-perpetual License Term, and SOWs shall immediately terminate; (ii) Braeban will have no further obligation to provide Services; (iii) if Braeban terminates this agreement for cause, then the EULA and all licenses granted to Customer (whether or not perpetual) shall immediately terminate and Customer shall immediately stop using (and Braeban may deactivate) the applicable Software; otherwise, the EULA (together with any provisions of this agreement required to give the EULA effect) will remain in effect after expiration or termination of this agreement, solely with respect to perpetual licenses previously granted; (iv) Customer shall not under any circumstances be entitled to a refund of any Fees paid, except as otherwise expressly provided herein; and (v) any section of this agreement which by its nature should survive termination shall so survive.

(b)           Upon expiration or termination of a Subscription for any reason, Braeban will have no further obligation to provide Services under the Subscription and Customer will promptly pay Fees and other charges accruing under the Subscription prior to expiration or termination. Customer acknowledges that some features of Advanced Software may not operate upon termination of SaaS Services. Additionally, if Braeban terminates a Subscription for cause, then Customer must pay to Braeban all unpaid Fees that were to have been paid for the remainder of the Subscription Term had it not been terminated, in addition to Braeban’s other rights and remedies. Braeban will not delete Customer Data for thirty (30) days following termination of the Subscription to SaaS Services. There will be no functionality of SaaS Services during these thirty (30) days other than the ability to retrieve Customer Data. Customer will not incur additional fees if Customer downloads Customer Data from SaaS Services during this time. Braeban has no obligation to maintain or provide Customer Data after thirty (30) days and may thereafter, unless legally prohibited, delete all Customer Data. Upon request, Braeban will provide written certification to Customer that Braeban has deleted all Customer Data from Braeban’s systems.

(c)            Upon expiration or termination of an Advanced Software License for any reason, (i) all rights and other licenses granted to Customer under that Advanced Software Package shall terminate and Customer shall immediately stop using (and Braeban may disable) Advanced Software that was provisioned thereunder; and (ii) Customer will promptly pay all Fees and other charges accruing under the Advanced Software License prior to expiration or termination. Additionally, if Braeban terminates an Advanced Software License for cause, then Customer must pay to Braeban all unpaid Fees that were to have been paid for the remainder of the applicable License Term had it not terminated, in addition to Braeban’s other rights and remedies.

(d)           Upon expiration or termination of an SOW for any reason, Braeban will have no further obligation to provide Services under the SOW (including any delivery due after termination, whether or not such delivery is in process at the time of expiration or termination) and Customer shall promptly pay Braeban a portion of the Fees that would have been due upon future attainment of delivery or other milestones (“Goals”) computed on a prorated basis equal to the number of days that Braeban worked towards the attainment of such Goals prior to termination relative to the number of days specified in the SOW for attainment of such Goals.

(e)            Upon expiration or termination of an Order Form for any reason, and without limiting the application of the preceding clauses in this Section, Braeban will have no further obligation to deliver any unfulfilled quantities of Hardware, grant any license or other rights, or perform any Services under the Order Form; (ii) Customer will promptly pay any outstanding Fees for Hardware that was delivered before expiration or termination of the Order Form; and (iii) if Braeban terminates the Order Form for cause, then Braeban may at its election either require Customer to take delivery of and pay for unfilled quantities of Hardware or recover damages in accordance with §2708 of the California Commercial Code, notwithstanding any provision herein to the contrary and in addition to Braeban’s other rights and remedies.

(f)             Customer acknowledges that the Software is programmed with technological controls that communicate with Braeban and that permit Braeban to deactivate software if Customer’s license to use such Software expires, terminates, or is suspended in accordance with this Agreement. IF A LICENSE TO SOFTWARE HAS EXPIRED, BEEN TERMINATED, OR HAS BEEN SUSPENDED, OR IF SOFTWARE IS USED IN VIOLATION OF THIS EULA, THEN Braeban MAY DEACTIVATE THE SOFTWARE AND CUSTOMER MAY THEREAFTER BE UNABLE TO USE SOFTWARE AND HARDWARE WHICH SOFTWARE CONTROLS. Braeban SHALL REACTIVATE SOFTWARE PROMPTLY IF AND WHEN THE SUBJECT LICENSE IS REINSTATED.

13.           Indemnification and Limitation of Liability.

13.1        Indemnification by Braeban. Braeban at its expense will defend and settle any claim to the extent alleging that Customer’s use of the Offerings, as permitted under this agreement, directly infringes any U.S. patent or U.S. copyright, and will pay any settlement or judgment to the extent based on such allegation, including payment of reasonable attorney fees and other costs of defense.

(a)            In order to make a claim under this Section, Customer must: (i) promptly notify Braeban in writing of the claim; (ii) grant Braeban sole control of the defense and settlement of the claim; and (iii) provide Braeban, at Customer’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.

(b)           If in Braeban’s reasonable judgment a claim appears likely, then Braeban may at its own election and expense: (i) procure for Customer the right to continue using the Offerings; (ii) modify the Offerings to avoid the claim, including by removing allegedly infringing functionality; or (iii) if procurement of the right of continued use or modifications to avoid infringement are not feasible without materially impairing the operation of the Offerings, either: (A) terminate any affected Subscription and refund on a pro rata basis Fees (if any) prepaid for same based on the portion of the Subscription Term remaining at the time of such termination; and/or (B) terminate Customer’s right to use any affected Products and (solely in the case of Hardware or perpetually-licensed Software) refund an amount equal to the any paid Fees reduced by straight-line amortization over three (3) years from the date of invoice.

(c)            The remedy in this Section is Braeban’s sole obligation and liability and Customer’s exclusive remedy relating to any claim or allegation against Customer or others asserting intellectual property infringement or misappropriation. Braeban will have no obligation under this Section to defend or settle any claim to the extent: (i) the alleged infringement is based upon the combination of Offerings with third-party products, services, or data; (ii) based upon modifications of Offerings made at the request of Customer or by a party other than Braeban; (iii) misuse of the Offerings; (iv) Customer’s failure to use the most recent version of Software provided by Braeban; or (v) in the case of an assertion of patent infringement, Braeban itself is not directly or indirectly infringing the patent through its sale to Customer of the accused Offerings.

13.2        LIMITATION OF LIABILITY. NEITHER PARTY NOR ANY OF ITS LICENSORS OR INFORMATION PROVIDERS AND OTHER SUPPLIERS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AFFILIATES, AND AGENTS SHALL HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OR FOR LOSS OF PROFITS, REVENUE, USE, OR DATA, ARISING FROM OR RELATING TO THIS AGREEMENT OR CUSTOMER’S USE OF OR INABILITY TO USE THE OFFERINGS, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR ARISING UNDER ANY OTHER LEGAL THEORY, EVEN IF THE FIRST PARTY IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SUBJECT TO THE FOREGOING, EACH PARTY’S AGGREGATE, CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE OTHER PARTY’S USE OF OR INABILITY TO USE THE OFFERINGS, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR ARISING UNDER ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO Braeban UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE FIRST EVENT THAT GIVES RISE TO LIABILITY FOR ANY DAMAGES CLAIMED BY EITHER PARTY. THE EXISTENCE OF MULTIPLE CLAIMS SHALL NOT EXPAND THESE LIMITS. CUSTOMER ACKNOWLEDGES THAT THE FEES CHARGED BY Braeban REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT Braeban WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THE FOREGOING LIMITATIONS APPLY, EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

14.           Confidentiality.

14.1        Confidential Information. A party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) will: (a) protect the Disclosing Party’s Confidential Information using the same degree of care, and in no event less that reasonable care, that it uses to protect its own Confidential Information, (b) use the Disclosing Party’s Confidential Information only for purposes consistent with this agreement, and (c) limit access to Disclosing Party’s Confidential Information to its employees, contractors, or agents who are involved in performing this agreement, have a “need to know,” and have signed a non-disclosure agreement with terms no less restrictive than those herein. Customer shall treat the terms of this agreement as Confidential Information of Braeban.

14.2        Compelled Disclosure. If the Receiving Party is compelled to disclose by law, order issued by a court of competent jurisdiction, regulatory agency, or other governmental body (each, an “Order”) any Confidential Information, the Receiving Party will, if legally permissible, promptly give the Disclosing Party written notice of the Order and reasonable assistance to the Disclosing Party prior to disclosure to provide the Disclosing Party with the opportunity to interpose any and all objections it may have to disclosure of the information required by the Order and seek a protective order or other appropriate relief.

14.3        State Customers. Braeban acknowledges and agrees that State Customers are subject to applicable state or local public information acts, and that governmental expenditures are generally considered public information and are subject to disclosure to the public.

15.           Miscellaneous

15.1        Amendment of the Terms of Use. Braeban may amend these Enterprise Terms of Use effective upon publication to its website or by giving notice to Customer. Such amendments will not apply to any perpetual license granted prior to amendment or to any Advanced Software Package for the remainder of the then-current License Term but shall apply to any subsequent License Term upon renewal.

15.2        Electronic Communications. By using the Offerings, Customer explicitly consents (to the fullest extent permitted by applicable law) to receive all notices and information relating to use and operation of the Offerings via emails, push notifications, and other similar means, and Customer agrees that all agreements, notices, disclosures and other communications that Braeban provides to Customer electronically satisfy any legal requirement that such communications be in writing.

15.3        Compliance with Laws. The Offerings have been designed, marketed, and sold for use solely within the Authorized Territory. All safety warnings, information, instructions, packaging, in-box materials, Mobile Apps, and support services will only be provided in English, except where translation is required by applicable laws or regulations within the Authorized Territory.

15.4        Breach. Any breach of these Terms shall be deemed a material breach of the agreement.

15.5        Violations and Complaints. Without limiting Braeban’s rights or remedies under the Terms or at law or in equity, Braeban may investigate complaints or evidenced violations related to Customer’s use of the Offerings and alleged violations of these Terms and take any action Braeban deems necessary and appropriate in connection with such complaints and violations.

15.6        Choice of Law and Venue.

(a)            If Customer is a non-governmental entity, this agreement will be interpreted under California state law without giving effect to any choice of law principles that would require the application of the laws of a different country or state, and any claim by a party may be brought in any state or federal court of competent jurisdiction located in San Francisco, California.

(b)           If Customer is a state or local governmental entity (“State Customer”), then Customer’s state law will apply and any claim arising under this agreement may be brought in the state or federal courts located in Customer’s state.

(c)            If Customer is a federal governmental entity (“Federal Customer”), United States federal law will apply and any claim may be brought in any federal court.

(d)           The United Nations Convention on Contracts for the International Sale of Goods does not apply to this agreement.

15.7        Export Control. Customer acknowledges that certain of Braeban’s Offerings, or Confidential Information may be subject to US export control laws and regulations, which include, but are not limited to, the Export Administration Regulations. Customer represents that: (a) Customer is and has always been in compliance with all Laws administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control imposing economic sanctions and trade embargoes (“Economic Sanctions Laws”) against designated countries, regimes, entities, and persons (collectively, “Embargoed Party”); and (b) Customer is not an Embargoed Party or otherwise subject to any Economic Sanctions Law. Customer agrees: (c) not to violate any applicable Economic Sanctions Laws during the term of this agreement; and (d) not to, without limitation, disclose, transfer, or export Braeban’s Products, Services, or Confidential Information to an Embargoed Party or other third parties, including foreign persons or entities wherever located, whether or not related to or affiliated with Customer, without first obtaining the appropriate US government authorization if required, and receiving express written consent from Braeban. If Customer is a non-governmental entity, Customer shall defend, indemnify, and hold harmless Braeban and its suppliers from and against any claim arising from Customer’s violation of such laws or regulations.

15.8        Construction. In constructing the terms of this agreement, no presumption shall operate in favor of or against any party because of its counsel’s role in drafting the terms and provisions hereof. If the terms of this agreement conflict with a Braeban Order Form, then the terms of this agreement shall control unless the Braeban Order Form is signed by both parties and expressly identifies the modified provision of the agreement. This agreement is in the English language and its English language version shall be controlling over any other translation, except as otherwise required by applicable law. The parties to this agreement have expressly required that the present agreement be drawn up in the English language. Excluding this sentence, which shall control in all cases, the order of precedence in construction of this agreement shall be (in order of most controlling to least controlling): End User License Agreement, Limited Warranty, Braeban Care Terms of Service, Enterprise Terms of Use, and (the applicable) Terms and Conditions of Sale. As between Braeban and the Customer, Braeban terms shall control over any terms agreed between the Customer and any reseller.

15.9        Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this agreement, for any reasonable delay in fulfilling or performing any obligation under this agreement (other than the obligation to pay money), when and to the extent such delay is directly caused by acts of God, epidemics or pandemics, quarantines, export bans, sanctions and other government actions, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, natural disasters, extreme adverse weather, stability or availability of the internet; the elements; telecommunication system failure; technology attacks, embargoes; strikes; lockouts; disputes with workmen or other labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; or acts or requests of any governmental authority.

15.10     Notice. Except as otherwise expressly provided herein, all notices shall be in writing and deemed delivered the earlier of: (a) actual receipt; (b) upon delivery by a nationally recognized overnight courier (receipt requested) to the receiving party’s address as specified herein or updated by written notice; or (c) when received via electronic communications as evidenced by either party’s contemporaneously created computer records. The parties’ addresses for notice are set forth above. Either party may change its address of record by giving the other ten (10) days’ notice. Notwithstanding the foregoing, Braeban may give notice of prospective changes to its schedule of Fees by reasonably conspicuous display on the user interface for SaaS Services or Customer’s Account.

15.11     Relationship Between the Parties. The parties are independent contractors. Neither party is the agent, partner, employee, fiduciary, or joint venturer of the other party under this agreement. There are no third-party beneficiaries under this agreement.

15.12     Remedies. Except as otherwise provided herein, the parties’ rights and remedies under this agreement are cumulative and non-exclusive. No single right or remedy shall be exclusive of any other which is consistent with the former. Customer acknowledges that the Offerings contain valuable trade secrets and proprietary information of Braeban and its suppliers, that any actual or threatened breach of this agreement by Customer would constitute immediate, irreparable harm for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

15.13     Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion.

15.14     Severability. If any provision of this agreement is held unenforceable by a court, such provision may be changed and interpreted by the court to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions shall continue in full force and effect.

15.15     Assignment. Braeban may assign this agreement, without restriction, upon notice to Customer. Except as otherwise provided herein, Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of Braeban; provided, however, Customer may assign this agreement in its entirety, together with all rights and obligations hereunder, to any party that is not an Embargoed Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this agreement, and Customer shall provide Braeban with prior written notice of such assignment.

15.16     Entire Agreement. The parties may during the course of performance repetitively indicate their assent to this form of agreement, the EULA, or the Enterprise Terms of Use, such as by clicking an “Accept” icon on Braeban’s website; the parties agree that once they have entered into this agreement, such subsequent manifestations of assent shall be treated as an affirmation or amendment of the contract that they have formed under these terms, and not as a series of separate contracts. In no event shall any clauses, terms, or conditions of a governmental entity customer flow-down to Braeban, or into this agreement, or otherwise be deemed to be included or apply to this agreement, without Braeban’s prior and express written consent.