Updated October 2023
BRINKER GENERAL TERMS AGREEMENT
Brinker Technologies Ltd., (“Brinker”, “our”, “we” or “us”) offers to its customers (“Customers”) a platform to fight harassment and misinformation online (the “Solution”). In addition, our website located at https://www.brinker.ai/ offers visitors (respectively “Website” and “Visitors”) information on our company, information concerning our Solution. The Website together with the Solution, except if specifically, otherwise designated, shall be referred to herein as the “Services”. “Users” or “You” refer to: (I) Customer’s first user of the Service (“Customer’s Admin”), (II) end users invited by Customer and/or by Customer Admin (namely employees and any other Customer personnel) who access and/or were invited to use or access the Services under Customer’s account (the “End User(s)”), (III) and Visitors. Each of the Users may access and use the Services in accordance with the terms and conditions hereunder. You hereby represent that You are a natural or legal person that uses and/or intends to use the Services for your and/or your Organization’s own internal business activity. The term “Organization” shall mean Customer’s and/or User’s team, company, organization or any other legal entity that you represent and/or affiliated with.
1. The Services
1.2 Modification of the Services. Brinker may continuously update its Services with new capabilities or offerings or replace and/or discontinue some of the capabilities with others. You acknowledge and agree that some of the features and capabilities may be experimental and/or offered in limited versions or limited locations. In addition, Brinker may at any time, in its sole discretion, add or remove any features and/or functionality from the Service. The customer’s sole remedy in the event of such changes shall be, where such changes reflect a material decrease in functionality, to terminate any affected subscription to the Service. In such event Customer is required to provide Brinker with written notice of such termination not later than within fourteen days of being notified of such adverse change and where Customer is under a paid subscription to the Service, Brinker shall provide Customer with a refund for the pre-paid un-used subscription fees.
2. Confidential Information.
Either party (a “Disclosing Party”) may disclose or make available to the other party (a “Receiving Party”) certain confidential information regarding its technology, operations and business (“Confidential Information”). Receiving Party agrees to use best reasonable industry measures to protect the confidentiality and not disclose the Confidential Information to any third party or use any Confidential Information except as required to provide or use of the Services in the scope of the parties’ engagement hereunder. Confidential Information shall not include information that Receiving Party can show by written evidence (a) was already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information, (b) was received by Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions. Receiving Party shall not be prevented from disclosing Confidential Information pursuant to a binding court order or similar binding legal requirement for disclosure, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperate in order to minimize such requirement. The Receiving Party shall restrict disclosure of Confidential Information to those of its employees with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. Receiving Party shall in any event remain liable for any actions or omissions performed by its employees and service providers, as if performed by Receiving Party.
3. Intellectual Property and Proprietary Right
3. 1 User Restrictions. You may not and you shall not permit any person, and/or any third party to (i) copy, modify, distribute, publicly display, transfer or create derivative works of, sell, rent, lease, sublicense, adapt, emulate, translate, reverse engineer, compile, decompile, disassemble or reproduce the Website and/or the Solution, or any parts thereof, for any purpose, (ii) remove or delete any and all copyright notices, restrictions and signs indicating proprietary rights of Brinker and/or its licensors, including copyright mark [©] or trademark [® or ™] contained in or accompanying the Website and/or the Services, (iii) use the Content without our prior express written consent; (iv) create a browser or border environment around the Website, and/or Solution, link, including in-line linking, to elements on the Website or Solution, such as images, posters and videos, and/or frame or mirror any part thereof or use the Services as a services bureau or otherwise to provide services which are in essence similar to the Services to third parties; (v) transmit, distribute, display or otherwise make available through or in connection with the Services any content, including any User Data (as defined below), in a manner which infringes third party rights, including intellectual property rights and privacy rights, or which may contain any unlawful content; (vi) transmit or otherwise make available in connection with use of the Services any malware or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (vii) take any action that imposes or which Brinker determines, in its sole discretion, may impose an unreasonable heavy load on the Website’s and/or the Services’ infrastructure, interfere with or disrupt the operation of the Services, or the servers or networks that host them or make the Services available; (viii) use the Services for and/or in connection with any form of spam, unsolicited mail or similar conduct; (ix) access and/or use any part of the Services and/or the Content in order to build a competitive product or service; (x) publish or disclose to any third party any technical features, quality, performance or benchmark test, or comparative analyses relating to the Services; (xi) bypass any measures which are used to prevent, control or restrict access to the Services and/or certain functionalities therein; (xii) use the Services and/or the Website in any unlawful manner, for any harmful, or inappropriate purpose; (xiii) infringe or violate any of the terms and conditions of these Terms. You hereby agree that upon Brinker’s request you will immediately return and purge from your systems all materials and copies of any materials collected, created or used in breach of these Terms.
3.2 Brinker Intellectual Property. any proprietary and intellectual property rights in and to the Service including any content thereof, such as logos, graphics, icons, images, as well as the selection, assembly and arrangement thereof, but excluding references by name or logo to third party brands, (the “Content”) and related materials, Brinker’s trademarks, trade names, copyrightable materials, designs, “look and feel,” all whether or not registered and/or capable of being registered, and any and all Feedback as defined herein (Collectively, the “Brinker Properties”), are owned by and/or licensed to Brinker or its affiliates or licensors and are subject to copyright and other applicable intellectual property rights under Federal and state United States law, foreign laws and international conventions.
3.3 Feedback. In the event Customer provides Brinker with any suggestions, comments or other feedback (“Feedback”) relating to the Services whether such Feedback is provided prior to, on or after the Effective Date, such Feedback shall become the sole and exclusive property of Brinker and/or its affiliates, and Customer hereby irrevocably assigns to Brinker and/or its affiliates all of its right, title and interest in and to such Feedback.
4.2 Authorization to share User Data. You hereby represent and warrant that you have the full right, permissions and consents to provide Us with the User Data and any other data and information you make available to Us, through the Services (together “Product Data”) under these Terms.
4.3 Use of Product Data. You hereby grant Brinker a non-exclusive, worldwide, non-assignable and transferable license to use Product Data you made available to us in the scope of Your use or access to the Services (including for the collection storage, processing, analysis, display, transfer and creation of derivatives, thereof) for the purpose of providing the Services to You and to the Customer with which your account is associated, as contemplated hereunder.
4.4 Anonymous Cumulative Information. Without derogating from the foregoing, you hereby grant Brinker a perpetual, irrevocable, non-exclusive, worldwide, royalty-free right and license to use Product Data that has been anonymized and that cannot be used to identify or otherwise understood to be related to Your Customer, for the purpose of internal research or otherwise improving or enhancing the Services (or any part thereof).
5. Order Form
5.1 Order Form. We may require you to execute a Purchase Order in order to allow you access or to subscribe to the Services (the “Order Form”). An Order Form may specify and include, among others, the fees payable in consideration for your access to the Services (“Fees”), the scope of the Services, subscription plan and term, termination rights, additional payment and billing terms. An Order Form may be executed in various ways (as we deem appropriate), including by click-accepting an Order Form displayed through the Website or otherwise in an online form, or by mutual acceptance in writing. Unless otherwise agreed between the Parties in an Order Form, all Order Forms are final and may not be cancelled or terminated for convenience by User or Customer. Brinker may cancel or terminate an Order Form at any time, for convenience, by providing written notice (including by email) thereof to User/ Customer.
5.2 Payment of Fees. We may allow several means of payment such as bank transfer, payment through an online payment gateway, and other means we may make available from time to time. Unless otherwise set forth in an Order Form, any Fees owed by you to Brinker shall be paid to Brinker in advance of the provision of the relevant Services.
Disclaimer of Warranties; Limitation of Liability
THE SERVICES ARE MADE AVIALBLE TO THE CUSTOMER ON AN “AS IS” BASIS WITHOUT ANY WAARANITIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLDUING BUT NOT LIMITED TO ANY WARRANITIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF OR RELATING TO CUSTOMER USE OF THE SERVICES, IS AND REMAINS WITH THE CUSTOMER; WITHOUT LIMITING THE FOREGOING, BRINKER DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) CUSTOMER USE OF OR INABILITY TO USE THE SERVICES, (II) THE ACTS OR OMISSIONS OF ANY PERSON(S) WITH WHOM CUSTOMER MAY COMMUNICATE OR INTERACT AS A RESULT OF CUSTOMER USE OF THE SERVICES; COMPNAY ACKNOWLEDGE AND AGREE THAT USING THE SERVICES, IS AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER AND HEREBY RELEASE BRINKER AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING. THE SERVICES DO NOT CONSTITUTE LEGAL ADVICE AND SHOULD NOT BE RELIED UPON AS A SUBSTITUTE FOR PROFESSIONAL LEGAL ADVICE. THE CUSTOMER SHOULD CONSULT WITH A QUALIFIED LEGAL PROFESSIONAL BEFORE MAKING ANY DECISIONS OR TAKING ANY ACTIONS BASED ON THE INFORMATION PRESENTED PERSUANT THE SERVICES.
Under no circumstances will BRINKER be liable for INDIRECT, special, incidental or consequential damages, including, without limitation, lost profit or loss resulting from business interruption, even if THE CUSTOMER has been advised of the possibility or likelihood of such damages. EXCEPT WITH REPSECT TO DAMAGES ARISING DIRECTLY FROM BRINKER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT SHALL BRINKER, ANY OF THE BRINKER’S AFFILIATES BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATIO ANY LOSS OF GOODWILL, REPUTATION, DATA, PROFITS, BUSINESS, OR ANTICIPATED SAVINGS RESULTING FROM OR ARISING OUT OF THE SERVICES AND/OR WEBSITE, THE USE OR INABILITY TO USE THE SERVICES AND/OR WEBSITE, FAILURE OF THE SERVICES AND/OR WEBSITE TO PERFORM AS EXPECTED, THE PERFORMANCE OR FAILURE OF BRINKER TO PERFORM UNDER THESE TERMS, AND ANY OTHER ACT OR OMISSION OF BRINKER BY ANY OTHER CAUSE WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM THE CONDUCT OF ANY USERS AND/OR THIRD PARTY WEBSITES.
YOU AGREE, AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS BRINKER, OUR OFFICERS, DIRECTORS, AND EMPLOYEES, FROM ALL LIABILITIES, CLAIMS, ALLEGED CLAIMS, LOSS AND DAMAGES AND INCLUDING REASONABLE ATTORNEY’S FEES, ARISING FROM WRONG, UNLAWFUL OR INACCURATE INFORMATION YOU PROVIDE US. WE WILL PROVIDE YOU WITH WRITTEN NOTICE OF SUCH CLAIM, SUIT OR ACTION AND ALLOW YOU TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU HEREUNDER AS LONG AS YOU CONDUCT SUCH DEFENSE DILIGENTLY AND WILL NOT AGREE TO A SETTLEMENT THAT INCLUDES BRINKER’s ADMISSION OF GUILT WITHOUT OUR PRIOR WRITTEN CONSENT THERETO.
8.1 Relationship of the Parties. These Terms do not, and shall not be construed to create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto.
8.2 Modification. Brinker may change and modify these Terms from time to time, at its sole discretion and without any notice, all changes to these Terms are effective as of the stated “Last Revised” date and your continued use of the Services after the Last Revised date will constitute acceptance of, and agreement to be bound by, those changes.
8.3 Governing Law and Jurisdiction. Any claim relating to the use of the Services will be governed by and interpreted in accordance with the laws of the State of Israel, without reference to its conflict-of-laws principles. Any dispute arising out of or related to your use of the Services will be brought in, and you hereby consent to the exclusive jurisdiction and venue in, the competent courts of the Tel-Aviv, Israel.
8.4 Severability. If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provision.
8.5 No Waiver. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.
8.6 Assignment. You may not assign, sublicense or otherwise transfer any or all of your rights or obligations under these Terms, without Brinker’s prior express written consent. For the avoidance of doubt, You may assign these Terms to another entity, in connection with a merger, acquisition, or sale of all or substantially all of Your assets or shares (except for an assignment to a competitor of Brinker), provided that You deliver us with prompt written notice of such assignment. We may assign our rights and/or obligations hereunder and/or transfer ownership rights in the Services (or any part thereof) to a third party without Your consent or providing any prior notice.
If you wish to receive more information on these Terms, please contact us here: firstname.lastname@example.org