Terms of Service

1. Scope of Application

1.1. These General Terms and Conditions ("GTC" or "Terms of Service") are applied by Brains ("Brains" or "we").

1.2. Brains has developed the Brains software, an intelligent note-taking and task management platform that enhances productivity through AI-powered organization and insights (the "Software" or "App") and offers the Software under a Software-as-a-Service model ("SaaS"), as a web application, and the App for download on any electronic device.

1.3. The precise system requirements and the full scope of functions of the Software are found on Brains's website brains.so (the "Website") and in the product descriptions on the distribution platforms used to download the App.

1.4. The offer of Brains for the use of the Software is directed to both Consumers and Business Customers (each a "Customer"). For the purpose of these GTC, (i) a "Consumer" is any individual entering into the contract for a purpose not related to the individual's business, trade or self-employed professional activity and (ii) a Business Customer is a user (whether an individual, company or partnership vested with legal capacity) who enters into the relevant contract in the conduct of its business or self-employed professional activity.

1.5. The legal relationship between Brains and the Customer are exclusively these GTC. General terms and conditions of the Customer are excluded. Counter-confirmations of the Customer with reference to the Customer's terms and conditions are hereby contradicted.

2. Subject of the Contract

2.1. Brains makes the Software available to the Customer for use for the duration of the Agreement via the internet or for download with a 14-day free trial period, followed by paid subscription (the "Service"). As part of the SaaS Brains sets up the Software on a server operated by Brains or a subcontractor commissioned by Brains.

2.2. Brains only owes the properties of the functions and characteristics of the Software as shown in the documentation and adapting the Service to the pertinent state of the art.

2.3. Brains will continuously expand the Software and the Service through patches, updates and upgrades and make improvements if these (i) serve technical progress or (ii) appear necessary to prevent misuse. In addition, Brains may modify the Software and/or the Service if (i) applicable law requires such modifications, (ii) the modifications are beneficial to the Customer, and (iii) the modifications are purely technical or procedural and do not materially affect the Customer. All other changes are subject to section 16 of these GTC.

2.4. Brains does not owe an adaptation of the Service to the needs of the Customer. Upgrades such as additional features may be made available to the Customer by agreement and, if applicable, against separate remuneration.

3. Registration, Sign-up

3.1. The usage of the Service requires the registration as well as the set-up of a user account (the "User Account") by filling in the name, email address as well as a password. During the initial registration by pressing "Start Free Trial" and having clicked the checkbox "I agree to Terms of Service" the Customer submits an offer on the conclusion of the agreement to use the Service according to the Terms of Service (the "Agreement"). After the 14-day free trial period, the Customer will be asked for payment information and the Customer will be informed that by continuing the subscription Brains has the right to charge the fees via the Customer's chosen payment option respectively. Brains will accept the Customer's offer by sending the Customer a confirmation email or by providing the Service to the Customer.

3.2. When the Customer creates a User Account, the Customer must provide Brains information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of these Terms of Service, which may result in immediate termination of the registration.

3.3. The Customer shall take all necessary steps to ensure that the password is at all times kept confidential. The Customer shall notify Brains by contacting support@brains.so without undue delay if there are signs of unauthorized use of the Customer's User Account or any breach of security by a third party. The Customer is not authorized to grant the use of the User Account to any third party. The Customer is responsible for all activity that occurs on the Customer's User Account.

3.4. The Customer may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than the Customer without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.

4. Provision of the SaaS Software, Service Availability

4.1. The Software shall be hosted on a server infrastructure licensed by Brains. Brains shall make the Software available for use at the router outlet point of the computer center in which the server with the Software is housed (the "Handover Point"). The Customer is responsible for the internet connection between the Customer and the computer center and the hardware and software required therefore (e.g. PC, network connection).

4.2. The Customer must be aware that restrictions and/or impairments of the Services provided may arise that are beyond Brains's control, such as actions of third parties not acting on behalf of Brains, technical conditions beyond Brains's control and force majeure.

4.3. Brains will make regular backups and store them for a reasonable period.

4.4. The Software is offered subject to availability. For paid accounts, the average availability of the Software is 99% on an annual average. The decisive factor is the availability of the Software at the delivery point. Not included in the calculation of availability are (i) the regular maintenance windows, which can be up to 4 hours per month and are usually carried out during off hours, (ii) periods of unavailability due to mandatory unscheduled maintenance work necessary to eliminate malfunctions, (iii) periods of unavailability due to circumstances beyond the control of Brains, in particular force majeure.

5. Support Services

5.1. The scale of the support services shall depend on the scope agreed between the parties.

5.2. Support requests must be reported in writing with a comprehensible description of the error symptoms via support@brains.so, which, if possible, should be substantiated by written records, screenshots or other documentation proving the defects. Support requests are generally processed within Brains's normal business hours.

6. Fees

6.1. After the 14-day free trial period, the Customer shall pay Brains the agreed monthly or annual flat-rate fee.

6.2. The billing of a subscription is made on a pre-paid basis. The chosen payment source will be billed within five (5) business days of the end of the free trial period and at every renewed period of subscription respectively according to the current price list. Details of the offered payment methods and conditions will be shown on the Website.

6.3. If the Customer wants to change subscription plans, the Customer may do so by making appropriate settings in the User Account. The corresponding higher or lower fee shall be billed accordingly for the remaining period of the Agreement's term or at the beginning of the following billing cycle.

7. Content

7.1. The Service allows the Customer to post, upload, save, share or otherwise make available text, images, notes, tasks or other information regardless of the form of that content ("Content"). The Customer is responsible for the Content that the Customer posts to the Service, including its legality, reliability, and appropriateness.

7.2. By posting Content to the Service, the Customer grants Brains the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content on and through the Service to the extent necessary to provide the Service ("License"). Apart from that, the Customer retains any and all of the Customer's rights to any Content the Customer submits, posts or displays on or through the Service and the Customer is responsible for protecting those rights. The Customer agrees that the License includes the right for Brains to make the Content available to other users of the Service with whom the Customer chooses to share, who may also use the Content subject to these Terms of Service.

7.3. The Customer represents and warrants that: (i) the Customer is the owner of the rights in and to the Content or the Customer has the right to use it and grant Brains the rights under the License, and (ii) the posting of the Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person.

8. Content Restrictions

8.1. Brains is not responsible for the content of Customers. The Customer expressly understands and agrees that the Customer is solely responsible for the Customer's Content.

8.2. The Customer may not transmit any Content that is unlawful, offensive, upsetting, intended to disgust, threatening, libelous, defamatory, obscene or otherwise objectionable. Examples of such objectionable Content include, but are not limited to, the following:

8.3. Brains reserves the right, but not the obligation, to, in its sole discretion, determine whether or not any Content is appropriate and complies with these GTC, refuse or remove this Content. Brains can also limit or revoke the use of the Service if the Customer posts such objectionable Content. As Brains cannot control all content posted by users and/or third parties on the Service, the Customer agrees to use the Service at the Customer's own risk with regard to the following: The Customer understands that by using the Service the Customer may be exposed to content that the Customer may find offensive, indecent, incorrect or objectionable, and the Customer agrees that under no circumstances will Brains be liable in any way for any content, including any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the Customer's use of any content, unless in case of a liability of Brains pursuant to section 12 hereof.

8.4. Content Backups

8.5. Although regular backups of Content are performed, Brains does not guarantee there will be no loss or corruption of data.

8.6. The Customer shall make backup copies of data transmitted to the Service on the Customer's own data carriers in order to ensure the reconstruction of the data and information in the event of loss.

8.7. Corrupt or invalid backup points may be caused by, without limitation, Content that is corrupted prior to being backed up or that changes during the time a backup is performed.

8.8. Brains will provide support and attempt to troubleshoot any known or discovered issues that may affect the backups of Content. But the Customer acknowledges that Brains has no liability related to the integrity of Content or the failure to successfully restore Content to a usable state, unless Brains is responsible for the loss pursuant to section 4.3 in connection with section 12 hereof.

9. Indemnification

9.1. The Customer will indemnify, defend and hold harmless Brains and its officers, directors, employees for any and all claims, suits, litigation, cause of action, losses, damages, expenses, costs (including court costs and attorneys' fees) and liabilities ("Losses") that arise out of, or in connection with (i) the Customer's use of the Services; (ii) any breach by a Customer of any of the Customer's obligations pursuant to section 8.2 hereof; (iii) any claim that the Customer's Content caused damage to a third party. If the Customer is a Consumer, such obligations shall only apply if the Customer is responsible for the infringement resulting in any Losses.

9.2. In cases of an aforementioned enforcement of claims by third parties, the Customer will provide Brains with all the information that is needed for the examination of the claim and for the defense against it. The Customer provides the information immediately, truthfully, and completely.

10. Rights to Use the Software

10.1. Subject to the payment of the agreed fees, Brains shall grant the Customer the non-exclusive and non-transferable right to use the Software during the term of the Agreement in the agreed scope. The Customer shall use the Software as intended for the Customer's own interests (albeit not of affiliated companies or third parties without separate agreement).

10.2. An increase of the scope of use shall be possible pursuant to clause 6.3.

10.3. The Customer may only reproduce the Software in so far as this is covered by the intended use of the Software as per the current performance description.

10.4. The Customer is also not permitted to decompile, disassemble or reverse engineer the Software. The Customer has no claim to access to the source code or surrender of the source code for the Software.

10.5. The Software may contain Open Source Software components. Use of such components is subject to the corresponding terms of use of the Open Source Software components which are furnished and/or cited in conjunction with the Open Source Software components. In the event of contradictions or conflicting provisions in license terms for the Open Source Software and the provisions of these GTC, the license terms and conditions for the Open Source Software shall prevail.

11. Warranty

11.1. The Software provided by Brains essentially corresponds to the product description. In the case of update, upgrade and new version deliveries, the claims for defects are limited to the innovations of the update, upgrade or new version deliveries compared to the previous version status.

11.2. In principle, the applicable statutory provisions on warranty apply, in accordance with Australian Consumer Law and relevant state legislation in Victoria.

11.3. Brains does not warrant that the Customer's business expectations associated with the use of the Software will be realized.

11.4. Brains does not provide any additional warranty for the Software without express confirmation.

11.5. Any claims for damages shall be subject to the limitations set out in section 12.

12. Liability of Brains for Damages of the Customer

12.1. Brains shall be liable for damages or reimbursement of fruitless expenses to an unlimited extent and in accordance with the statutory limitation periods in the following cases:

12.2. In cases of simple negligence, Brains shall be liable in the event of a breach of material contractual obligations by Brains or one of its representatives or agents for the contract-typical, foreseeable damages. A material contractual obligation is an obligation the fulfilment of which is a requirement for the proper performance of the contract or the breach of which jeopardizes the achievement of the purpose of the contract and on the observance of which the Customer regularly can rely.

12.3. Without prejudice to sections 12.1 and 12.2 the liability of Brains, its representatives and agents is excluded, i.e. in particular for force majeure (incl. strikes, natural disasters, pandemics) and for the simple negligent breach of non-material contractual obligations.

12.4. Brains retains the right to object due to contributory negligence on the part of the Customer (e.g. due to a breach of the Customer's duty to cooperate).

12.5. Brains shall only be liable for the loss of data up to the amount that would have been incurred to restore the data if it had been properly and regularly backed up.

13. Data Protection and Data Security

13.1. Brains processes personal data in accordance with applicable privacy laws, including the Australian Privacy Act 1988 and the Privacy and Data Protection Act 2014 (Vic). Please refer to our Privacy Policy for details on how we collect, use, and protect your personal information.

13.2. Brains takes appropriate technical and organizational measures to ensure data security. Personal data and business-critical data are stored in a secure environment (protection by means of firewall, password protection, encryptions, etc.).

14. Term and Termination

14.1. The term of the Agreement shall be the chosen subscription period ("Initial Term"), which will be renewed automatically for the same period (each a "Renewed Term"), unless terminated pursuant to these GTC.

14.2. The Customer may cancel any subscription, and thereby terminate the Agreement, at any time without giving reason by using the respective "Cancel Subscription" button in the User Account. A paid subscription may only be terminated with effect to the end of the ordered Initial Term or to the end of the respective Renewed Term. No refunds will be provided for partial periods.

14.3. If the Customer wants to delete the entire User Account, the Customer may do so by pressing the button "Delete Account". If the Customer deletes the User Account and still has a valid paid subscription for the Service, any amount the Customer may already have paid for the subscription will not be refunded.

14.4. The right of either party to terminate the Agreement without notice for good cause and the right to terminate the Agreement in accordance with section 16 (extraordinary termination in the event of changes to the GTC) shall remain unaffected. Brains shall be deemed to have a good cause to terminate the contract in particular if (i) the Customer fails to comply with any applicable legal provisions or (ii) the Customer fails to comply with any terms of these Terms of Service, in particular section 8.2, and, where reasonable, Brains has given the Customer the opportunity to stop any misconduct but the Customer failed to do so.

14.5. With the end of the Agreement, the rights to use the Software pursuant to clause 10 shall automatically end without any declaration being required from Brains. The Customer shall have the right to export the Customer's data in standard format within thirty (30) days from the end of the Agreement.

15. Links to Other Websites

15.1. The Service may contain links to third-party web sites or services that are not owned or controlled by Brains.

15.2. Brains has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. The Customer further acknowledges and agrees that Brains shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such web sites or services.

15.3. Brains strongly advises the Customer to read the terms and conditions and privacy policies of any third-party web sites or services that the Customer visits.

16. Changes to the GTC

Brains reserves the right to change or amend these GTC. The planned changes or amendments shall be announced to the Customer by e-mail or in writing with a reasonable period of notice before the planned entry into force. If the Customer does not object to the amended GTC in text form (e.g. letter or e-mail) within thirty (30) days after receipt of the e-mail, the amended GTC shall be deemed accepted, unless the such changes affect any primary obligations of Brains to provide the Service with the main functions as agreed between the parties. In the event of an objection or non-acceptance of changes to primary obligations as stated above, the original GTC shall continue to apply unchanged; in this case, however, Brains shall be entitled to terminate the Agreement with a notice period of thirty (30) days from receipt of the objection to the end of the current, as applicable, Initial Term or Renewed Term.

17. Final Provisions

17.1. The Customer shall only be permitted to offset claims that are undisputed by Brains or have been legally established.

17.2. The exclusive place of jurisdiction for all disputes arising from and in connection with this Agreement is Melbourne, Victoria, Australia if the Customer is a Business Customer. Place of performance is the registered office of Brains.

17.3. The law of the State of Victoria and the Commonwealth of Australia shall apply exclusively. If the Customer is a Consumer and has his/her habitual residence in another jurisdiction, the Customer shall, however, continue to have the protection afforded to consumers by provisions that cannot be derogated from by agreement by virtue of the law applicable in the state of the Customer's habitual residence.

17.4. Should a provision of these GTC be or become invalid, contain an inadmissible deadline provision or a loophole, the legal validity of the remaining provisions shall remain unaffected. An effective provision which comes closest to the economic intentions of the parties shall be deemed to have been agreed in place of the ineffective provision. The same shall apply in the event of a loophole.