Terms of Service

Brainner Terms of Service Last updated: January 11, 2024

Welcome to our Terms of Service. We appreciate that you read these terms of service carefully. By accessing or using our services, you are accepting and agreeing to the terms outlined below. These Terms of Service constitute an agreement (this "Agreement") between Brainner, Inc., a Delaware corporation ("Brainner"), and the entity (corporation, LLC, partnership, sole proprietorship, or other business entity) that engages with our services ("Customer"). This Agreement becomes effective from the date the Customer either completes their first purchase with Brainner or logs into the Service for the first time (the "Effective Date"). Customer’s use of and Brainner's provision of the Service are subject to the terms set forth in this Agreement. Please note that each party confirms that it has read this agreement and understood its contents, agrees to its terms, and that the individual entering into this Agreement on behalf of the Customer is duly authorized to do so. Additionally, this individual confirms their authority to commit the Customer to these terms.

1. Definitions The definitions for the capitalized terms used in this Agreement are as follows: “Privacy Policy” means Brainner’s privacy policy at https://www.brainner.ai/privacy-policy “Customer Data” refers to information, data, and other content in electronic form that is collected, downloaded, or received, directly or indirectly, by or through the Service from the Customer or a User. “Service” means Brainner’s candidate’s application and resume screening service executed both through the platform or using our APIs. “User” means any individual who uses the Service on Customer’s behalf or through Customer’s account or passwords.

2. Use of Service Brainner is a provider of software services that help companies optimize their recruiting and hiring processes by automating processes in the resume screening analysis based on their specific criterias for each open position.. You agree to use our service only for lawful purposes and in compliance with our policies.

2.1. Use of the Service. During the Term, Customer may access and use the Service pursuant to the terms of any outstanding Order, including such features and functions as the Order requires.

2.2. Service Level Commitments. Brainner commits to using commercially reasonable efforts to ensure the Service is operational twenty-four hours a day, seven days a week, except during: (i) scheduled maintenance periods; and (ii) times when the Service is affected by factors outside of Brainner’s reasonable control, such as natural disasters, internet service disruptions, or denial of service attacks.

2.3. Documentation. The Customer is authorized to reproduce and utilize the Documentation solely to assist Users in their use of the Service. Documentation means Brainner's standard documentation related to use of the Service.

2.4. Service Revisions. Brainner reserves the right to modify the features or functions of the Service at any time, including the removal of features or functions. Should any modification materially reduce the features or functionality guaranteed under an Order, the Customer has the right to terminate the Order by providing 30 days’ written notification.

3. Account Registration

You may be required to register an account to use certain features of our service. You agree to provide accurate information and keep your account secure.

4. Account security

You are responsible for maintaining the security of your account and login information, and for promptly notifying Brainner of any suspected unauthorized access or use of your account.

5. Intellectual Property

All content and materials available on the platform are protected by copyright, trademark, and other intellectual property laws. You may not reproduce, modify, distribute, or create derivative works of any content or materials without our express written consent.

6. Subscription and Billing

6.1 Subscription Fee: Customers are required to pay Brainner the fee specified in each Order (the "Subscription Fee"). Once paid, these fees are non-refundable under any circumstances.

6.2 Subscription Plans and Features: Plan Options: Brainner offers a variety of subscription plans, including Individual, Teams, and Enterprise plans. Each plan is designed with specific features to accommodate the varying needs of different customer groups. Plan Details and Pricing: Detailed descriptions of the features and pricing for each subscription plan are available on our website. Customers are encouraged to review these details to select the most suitable plan for their requirements. Custom Enterprise Agreements: for customers with unique requirements, Brainner offers the option to negotiate custom subscription plans. These custom plans are designed to provide a tailored approach that aligns with the specific needs and scale of larger organizations. Enterprise customers interested in discussing custom plans should contact our sales team to initiate a consultation. Custom agreements are subject to negotiation and mutual agreement between the customer and Brainner, and terms may vary from those stated in standard subscription plans.

6.3 Subscription Tiers and Usage: Included Resume Analyses: Each plan includes a predetermined number of resume analyses per month, specific to each plan and detailed on our website. Additional Resume Analyses: If a customer exceeds their monthly limit of included resume analyses, additional bundles of 100 analyses can be purchased. These additional analyses are only valid within the current billing month and do not carry over to subsequent months. Automatic Renewal and Service Interruption Options: To prevent service interruption, customers can opt for automatic purchases of additional analyses upon reaching their limit. Alternatively, the service can be paused until the customer purchases more analyses or until the next billing cycle begins.

6.4 Adjustments and Flexibility: Changing Plans: Customers can change their subscription plans to better suit their evolving needs. Changes must be made before the start of the next billing cycle to take effect for the upcoming month. Cancellation: Customers may cancel their subscriptions at any time. Please note that refunds are not provided for any partial month service use or unused resume analyses.

7. Payment Methods

We accept credit card payments for all transactions. For payments over $1,000, ACH payment options are available.

8. Term and Termination

8.1. Term. This Agreement commences on the Effective Date and will continue for the duration specified in the subscription or the Order. After this period, the Agreement will automatically renew unless the customer cancels the subscription, which takes effect immediately, or either party gives written notice of non-renewal at least 30 days before the upcoming renewal date.

8.2. Termination for Cause. This Agreement may be terminated by either party in the event of a substantial breach by the other party. The party intending to terminate must provide written notice detailing the breach. The termination will take effect 30 days after the notice unless the breaching party remedies the breach within that time frame. If the breach is irremediable, termination may occur immediately.

8.3. Effects of Termination. Upon termination, the Customer must cease all use of the Service and either delete, destroy, or return all copies of the Documentation in its possession or control. The following sections will continue to apply even after the Agreement ends: (a) any obligations of the Customer to pay fees incurred prior to termination; (b) Sections 5 (Intellectual Property), 10 (Confidential Information), 11.2 (Warranty Disclaimers), 13 (Indemnification), and 14 (Limitation of Liability); and (c) any other provisions that must continue to be effective to achieve their fundamental purposes.

9. Customer Data and Privacy

9.1. Use of Customer Data. Brainner will not access, process, or use Customer Data except as required to deliver the Service, nor will it intentionally allow any third party access to Customer Data, including other customers, unless those third parties are bound by a reasonable nondisclosure agreement. This restriction can only be waived by the Customer's prior written consent.

9.2. Privacy Policy. The Privacy Policy is applicable solely to the Service and does not extend to any third-party websites or services that may be linked to or from the Service, nor to any services recommended or referred by Brainner's staff.

9.3. Security Measures. Brainner implements and will maintain commercially reasonable security measures to safeguard Customer Data. Nonetheless, the Customer acknowledges that online data storage inherently carries the risk of unauthorized access or exposure and accepts those risks by using the Service. Brainner disclaims any warranty that Customer Data will remain secure against inadvertent or unauthorized exposure or access.

9.4. Data Accuracy. Brainner is not responsible or liable for the accuracy of data uploaded to the Service by the Customer, including Customer Data and data provided by Users.

9.5. Data Deletion. Brainner reserves the right to permanently delete Customer Data if the Customer's account remains delinquent, suspended, or terminated for 30 days or more.

9.6. Excluded Data. The Customer assures that the Customer Data does not include, nor will it ever include, sensitive data that is governed by specific regulatory frameworks such as health data (HIPAA), minors' personal information (COPPA), educational records (FERPA), data related to home ownership (FHA), credit decision data (FCRA), or regulated financial data. The Customer understands and agrees that Brainner is not liable for the protection of such Excluded Data and that the Service is not designed to secure or manage Excluded Data in compliance with the pertinent laws.

9.7. Service Usage Data. The Customer consents to Brainner collecting Service Usage Data. Brainner retains ownership of all Service Usage Data and may use it to enhance, maintain, or improve the Service; develop new products or services; create and market benchmarks and metrics; or manage its business operations. However, if Service Usage Data is shared with third parties, it will be in an aggregated and de-identified format, ensuring that neither the Customer nor any personal information of the Customer can be reasonably identified.

10. Confidential Information

10.1. Definition: "Confidential Information" refers to all confidential data shared by one party ("Disclosing Party") with another ("Receiving Party"), whether through speech, electronically, or in writing, identified as confidential or naturally considered confidential due to the context and circumstances of the disclosure. This includes, but is not limited to, each party's business and marketing strategies, pricing details, technologies, product designs, and business processes. Confidential Information does not include data that is public knowledge, previously known to the Receiving Party, received from an unrelated third party, or independently developed by the Receiving Party without using the disclosed information.

10.2. Protection: The Receiving Party must protect the Confidential Information with the same care it uses for its own similar information, but no less than reasonable care. The Receiving Party will not use the Confidential Information for purposes outside this Agreement and will restrict access to employees, contractors, and agents who need it for activities related to this Agreement and who have agreed to similar confidentiality terms. The Receiving Party is responsible for ensuring these individuals comply with these confidentiality obligations. Disclosure of this Agreement's terms to third parties such as affiliates, legal advisors, and accountants, or as necessary to enforce rights under this agreement, requires the other party's written consent.

10.3. Compelled Disclosure: If the law requires the Receiving Party to disclose Confidential Information, they must notify the Disclosing Party in advance (when legally permissible) and assist in contesting the disclosure, if desired, at the Disclosing Party's expense. If disclosure is legally mandated during a civil proceeding where the Disclosing Party is involved and not contesting the disclosure, the Disclosing Party must cover any reasonable costs incurred by the Receiving Party in providing this information securely.

11. Representations and Warranties

11.1 Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the right, power and authority to enter the Agreement and to grant the rights granted hereunder and to perform all of its obligations hereunder; (c) the execution of any Order Form(s) incorporating this Agreement by its representative whose signature is set forth therein has been duly authorized by all necessary corporate or organizational action of the Party; (d) when any Order Form incorporating this Agreement is executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (e) it will abide by all applicable laws and regulations related to the performance of its obligations under this Agreement.


12. Changes to Terms

We may update these Terms of Service from time to time. We will notify you of any material changes to these Terms by posting a notice on our website or by email. Your continued use of the platform after any such changes constitutes your acceptance of the new Terms of Service.

13. Indemnification

The Customer agrees to defend, indemnify, and hold harmless Brainner, along with its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns (collectively referred to as "Brainner Associates"), from any "Indemnified Claim." An Indemnified Claim refers to any third-party claim, suit, or proceeding arising from or related to the Customer's actual or alleged use, misuse, or failure to use the Service. This includes, but is not limited to: (a) claims by Users, employees, or the Customer’s clients; (b) claims involving the unauthorized disclosure or exposure of personally identifiable information or other private data, including Customer Data; (c) claims alleging infringement or violation of copyrights, trademarks, trade secrets, or rights of privacy or confidentiality due to content uploaded to the Service via the Customer’s account, including Customer Data; and (d) claims asserting that the use of the Service through the Customer’s account constitutes harassment, defamation, fraud, a violation of the CAN-SPAM Act of 2003, or any other legal or regulatory infraction concerning electronic advertising. Indemnified Claims also cover claims arising from Brainner's negligence. The Customer's responsibilities under this section include hiring and compensating attorneys, covering court costs, and managing settlements or judgment payments at the Customer’s expense. Brainner reserves the right, which will not be exercised unreasonably, to reject any settlement or compromise that implicates it in wrongdoing, liability, or that imposes any ongoing obligations.

14. Limitation of Liability

14.1 Financial Liability Limit. The total liability of Brainner under this Agreement will not exceed the total amounts paid to Brainner under this Agreement in the twelve months prior to the incident giving rise to the claim.

14.2 Exclusion of Consequential Damages. Brainner will not be liable for any indirect, special, incidental, consequential, or punitive damages that may arise from or relate to this Agreement, regardless of the nature of the claim.

14.3 Clarifications and Disclaimers. The limitations of liability set forth in this section apply to: (a) Any claims of negligence, (b) All types of legal claims, including but not limited to contract, tort, strict liability, and any other legal theory, (c) Cases where Brainner was previously advised of the potential for such damages and regardless of whether such damages were foreseeable, (d) Situations where the provided remedies do not accomplish their fundamental purposes. If the laws in force limit the application of these limitations, Brainner’s liability will be restricted to the fullest extent permitted by law. For clarity, the limitations of liability and other rights outlined in this section also extend to Brainner's affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

15. Miscellaneous

15.1 Independent Contractors. The parties to this Agreement are independent contractors. Each party shall present itself as such in all matters. Neither party acts as the agent for the other nor has the authority to make commitments or representations on behalf of the other.

15.2 Publicity. The Customer authorizes Brainner to include the Customer's name and company logo in Brainner’s customer list and permits the use of the Customer's name and logo in Brainner’s sales, marketing, and business development activities.

15.3 Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

15.4 Amendment. Brainner reserves the right to modify this Agreement periodically by updating the terms on its website. The updated Agreement will be considered accepted and will take effect 30 days after its posting (the “Proposed Amendment Date”), unless the Customer provides Brainner with written notification of rejection before the 30 days are up. If the Customer rejects the updated terms, the Agreement will continue to be governed by its original terms until the commencement of the next subscription Term after the Proposed Amendment Date, provided that the Customer has not terminated the Agreement under Section 7, Term and Termination. Continued use of the Service after the new terms have taken effect indicates the Customer’s acceptance of the changes. Other than by posting on its website, this Agreement can only be modified through a written document signed by duly authorized representatives of both parties. Despite the above, Brainner may update the Privacy Policy at any time by posting a new version on its website, and such updates will take effect immediately upon posting.

15.5. Force Majeure. Neither party will be held responsible for delays, failures, or defaults in performance under this Agreement, except for the obligation to pay fees, when such issues are due to events outside the reasonable control of the affected party. This includes but is not limited to acts of war, terrorism, natural disasters like hurricanes and earthquakes, labor strikes, riots, civil disturbances, embargoes, and other unforeseeable and unavoidable events.

15.6 Choice of Law and Jurisdiction. This Agreement, and any disputes arising from or relating to this Agreement, shall be governed exclusively by the laws of the State of Delaware, including its federal laws, without regard to: (a) conflict of law principles that might apply the laws of another jurisdiction to the rights or obligations of the parties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties agree to the exclusive personal jurisdiction of both federal and state courts located in San Francisco, California for resolving any claims connected with this Agreement, including tort claims.

15.7 Subcontractors. Brainner may use Affiliates and subcontractors and permit them to exercise its rights and fulfill its obligations under this Agreement, provided, however, that Brainner remains responsible for their compliance with this Agreement and for its overall performance under this Agreement. This does not limit any additional terms for sub-processors under a data processing addendum.