APPENDIX A 

BRAINBOX AI

TERMS OF SERVICE

These Terms of Service are published on the Clevernet Ltd. (“Clevernet”) website and were last revised on December 4, 2020. Clevernet reserves the right to amend them from time to time.

Clevernet is an authorized reseller of the products and services of BrainBox AI Inc. (“BrainBox AI”) and has received from BrainBox AI the right to enter into this Agreement with the Customer.

Clevernet will provide the Customer with the services (the “BrainBox AI Services”) specified in an order form executed by both parties (the “Order Form”) in buildings located at the addresses specified in the Order Forms (the “Locations”) in accordance with the terms and conditions detailed herein (the “Terms of Service”).

All capitalized terms not defined in these Terms of Service have the meaning given thereto in the Order Form.

1.      Description of BrainBox AI Services

       

1.1      Platform BrainBox AI hosts and makes available a cloud-based platform (the “Platform”) using its artificial intelligence-based technology for the continuous analytics of the data collected through the BrainBox AI Device (as defined below) and to provide the BrainBox AI Services.

 

1.2      Hardware Where applicable, Clevernet provides an on-site edge device at the Location (the “BrainBox AI Device”) that collects and analyzes information about the operation of the Customer’s HVAC systems and proactively provides autonomous operating instructions to the Customer’s HVAC system during the Subscription Term.

 

1.3      Installation Clevernet, or a third-party installation sub-contractor, performs the installation of the BrainBox AI Device at the Location by performing the following activities:

a.         visit the Location to understand the current state of the Customer HVAC system;

b.         assemble the BrainBox AI Device suitable for the Location and the BrainBox AI Services;

c.         install the BrainBox AI Device at the Location;

d.         ensure the effectiveness of the communication connection between the Customer’s HVAC system, the BrainBox AI Device and BrainBox AI’s cloud provider;

e.         analyze the data received from the Customer’s HVAC system; and

f.          ensure the proper learning required by the Platform.

 

1.4      Dashboard Clevernet provides the Customer access to an online dashboard (the “Dashboad”), via an internet browser, that allows the Customer to view the performance-related information of the BrainBox AI Services.

 

1.5      Technical Support The Customer will generally have access to Clevernet technical support on a 24/7 basis through Clevernet’s customer service using a telephone number or email address provided on Clevernet’s website. Clevernet will use commercially reasonable efforts to provide on-site maintenance and repair for the BrainBox AI Device, at the times and dates mutually agreed by the Parties. In case of defective BrainBox AI Device, Clevernet, at its sole cost and discretion, will either: (i) correct the affected BrainBox AI Device; or (ii) replace such BrainBox AI Device. The above does not apply when the defective devices have been lost, stolen, damaged or otherwise mishandled or misused by the Customer or any third party.

 

1.6      Data Security Clevernet represents that both Clevernet and BrainBox AI shall establish, implement, and maintain appropriate administrative, physical, and technical safeguards for the security, confidentiality and integrity of any data and guard against the accidental or unauthorized access, use, alteration or disclosure of such data while it is on Clevernet’s and/or BrainBox AI’s network, systems and hardware.

 

1.7      Third Party Data Transmission Suppliers Clevernet’s ability to provide the BrainBox AI Services may be dependent on third party suppliers (e.g providers responsible for wireless data transmission and cloud data storage) and Clevernet will not be required to provide the BrainBox AI Services to the extent that such third-party suppliers do not perform their respective services and activities.

 

2.      Proprietary Rights

 

2.1      BrainBox AI Services and Derived Data BrainBox AI, or its licensors, retains all right, title and interest to the Platform, the BrainBox AI Device and the Dashboard, all technology, inventions and pre-existing content incorporated therein, all derivative works, modifications, enhancements, updates or upgrades thereto (including database structures), and all intellectual property rights in any of the foregoing. If the Customer suggests any new features, concepts, improvements or other feedback related to or based upon the Platform, BrainBox AI Device, Dashboard or other BrainBox AI products/services, and BrainBox AI subsequently incorporates such suggestions into its BrainBox AI Services, such suggestions will be the sole and exclusive property of BrainBox AI. The Customer acknowledges that BrainBox AI will retain all right, title and interest to transactional and performance data related to use of the BrainBox AI Services collected and used for business purposes (including Platform use optimization and product marketing) provided that such use does not reveal the identity of the Customer or specific Platform use that may be identified to the Customer.

 

2.2      BrainBox AI Device The BrainBox AI Device is not sold to the Customer. The Customer has no right to access, use, relocate or otherwise handle the BrainBox AI Device, except as directed or authorized by Clevernet. The Customer will not take the position that the BrainBox AI Device is a fixture to any real property or allow the BrainBox AI Device to become subject to any charge or lien relating to the premises or equipment on the premises. The BrainBox AI Device shall be returned to Clevernet upon termination or expiration of the Subscription Term.

 

2.3      Customer Data For the provision of the BrainBox AI Services, it is expected that BrainBox AI and Clevernet may have access, from time to time, to data supplied by the Customer or, as the case may be, by a third party retained by BrainBox AI, related to the operation of the Customer’s HVAC system and utility consumption (the “Customer Data”). Clevernet acknowledges that the Customer shall own all such Customer Data and that neither Clevernet nor BrainBox AI shall acquire a right, title and interest in and to the Customer Data through the provision of the BrainBox AI Services. The Customer hereby grants to Clevernet and/or BrainBox AI an unlimited, nontransferable, nonassignable right to:

a.         Use Customer Data to provide the BrainBox AI Services;

b.         Access, copy, display, reproduce, and transmit the Customer Data, solely for the purpose of providing the BrainBox AI Services to the Customer;

c.         Use Customer Data to debug software problems and provide technical support to the Customer; and

d.         Use Customer Data in an aggregated and anonymized form to provide the BrainBox AI Services to the Customer, and to improve BrainBox AI’s existing products and services or to develop new products and services, provided that BrainBox AI and/or Clevernet agrees not to disclose non-anonymized Customer Data to any unaffiliated third-party without the Customer’s prior written permission.

 

3.      Customer Obligations

 

3.1      Malfunctions The Customer promptly notifies Clevernet of any damage to, or malfunction of, the BrainBox AI Device of which the Customer becomes aware.

 

3.2      Restrictions The Customer shall not (i) use the BrainBox AI Device, the Platform or the Dashboard for any purpose other than as part of the BrainBox AI Services; (ii) modify, adapt, alter, translate or create derivative works of the BrainBox AI Device, the Platform or the BrainBox AI Device or the Dashboard; (iii) reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to decipher any code used in connection with the the BrainBox AI Device, Platform or the Dashboard and/or any aspect of BrainBox AI’s technology; (iv) rent, lease, loan, or use any of the Platform or the BrainBox AI Device or the Dashboard or their components to a third party via timesharing or as a service bureau; (v) market, offer to sell, sell, and/or otherwise resell any of the Platform or the BrainBox AI Device or the Dashboard or any of their components to any third party; (vi) use the BrainBox AI Services or its components other than as authorized by BrainBox AI and/or Clevernet; (vii) use the Platform or the BrainBox AI Device or the Dashboard or their components for the purpose of building a competitive product or service; (viii) remove, alter or obscure any proprietary notices on any of the Platform or the BrainBox AI Device or the Dashboard; or (ix) use the BrainBox AI Services through any other hardware, system or device other than as contemplated by these Terms of Service.

 

4.      Fees and Payment Terms

 

4.1      Fees The Customer will pay to Clevernet the fees referenced in each Order Form (the “Fees”). Unless otherwise noted on an Order Form the fees are payable in Euros.

 

4.2      Invoicing Clevernet will prepare and send via email to the Customer an invoice for any Fees that have become due and payable. For invoices that do not relate to Installation Fees or Monthly Subscription Fees, the Customer will pay all invoiced amounts within 30 days of the invoice date.

 

4.3      Disputed Invoices To dispute an invoice, the Customer must contact Clevernet no later than 15 days after the invoice date and pay any undisputed amounts when due. The parties will negotiate the disputed amounts in good faith to settle the dispute.

 

4.4      Late Payment Other than as specified above, the Customer may not withhold or set off any amounts due to Clevernet. Clevernet reserves the right to suspend the BrainBox AI Services until all due amounts are paid in full. Any late payment will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.

 

4.5      Taxes The Fees set out in the Order Forms or these Terms of Service do not include applicable sales, use, gross receipts, value-added, QST, GST or HST, personal property or other taxes. The Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, withholding, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with the BrainBox AI Services.

 

4.6      Suspension Any suspension of the BrainBox AI Services by Clevernet pursuant to Section 4.4 will not excuse the Customer from its obligation to pay the Fees.

 

5.      Term

These Terms of Service shall be effective as of the date of signature of the initial Order Form and shall remain in effect until all Order Forms hereunder have expired or been terminated.

 

6.      Proprietary Information

 

6.1      Definition “Proprietary Information” means the terms of the Order Forms between the parties and all non-public business information conveyed by one party (the “Disclosing Party”), to or received by the other party (the “Receiving Party”) including, but not limited to, Customer Data and information relating to:

 

a.         the Disclosing Party’s planned or existing computer systems and systems architecture, including computer hardware, computer software, source code, object code, documentation, methods of processing and operational methods;

b.         the Disclosing Party’s customer lists, sales, profits, organizational structure and restructuring, new business initiatives and finances.

 

6.2      Exclusions Notwithstanding the foregoing, Proprietary Information will not include information that:

a.         is or becomes generally known to the public not as a result of a disclosure by the Receiving Party,

b.         is rightfully in the possession of the Receiving Party prior to disclosure by the Disclosing Party,

c.         is received by the Receiving Party in good faith and without restriction from a third party, not under a confidentiality obligation to the Disclosing Party and having the right to make such disclosure; or

d.         the Receiving Party can demonstrate by documentary evidence was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Proprietary Information.

 

6.3      Obligations

a.         Protection Each party shall protect the Proprietary Information of the other party with the same standard of protection and care that it uses for its own Proprietary Information, but in no event less than reasonable care and diligence.

b.         Disclosure and Copy Neither party shall disclose, publish, transmit or make available all or any part of such Proprietary Information except in confidence or a need-to-know basis to its own employees and third party contractors who have undertaken a written obligation of protection and confidentiality at least as protective as those obligations stated herein, and shall not duplicate, transform or reproduce such Proprietary Information except as expressly permitted hereunder.

c.         Use Each party will use the other party’s Proprietary Information solely for purposes of performing its obligations or exercising its rights under these Terms of Service.

d.         Destruction Upon termination or expiration of these Terms of Service, or at any time the Disclosing Party may request, the Receiving Party will deliver promptly to the Disclosing Party or, at the Disclosing Party’s option, destroy all memoranda, notes, records, reports, media and other documents and materials (and all copies thereof) regarding or including any Proprietary Information that the Receiving Party may then possess or have under its control, unless otherwise provided herein.

 

6.4      Disclosure as Required by Law The Receiving Party may disclose Proprietary Information to the limited extent required by law; provided, however, that, to the extent permitted by law, the Receiving Party notifies the Disclosing Party in writing in advance of such disclosure and provides the Disclosing Party with copies of any related information so that the Disclosing Party may take appropriate action to protect the Proprietary Information.

 

7.      Disclaimer, Limitation of Liability, Indemnification and Insurance

The parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

 

7.1      Disclaimer EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS OF SERVICE, CLEVERNET DOES NOT WARRANT THAT THE BRAINBOX AI SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE BRAINBOX AI SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS OF SERVICE. THE BRAINBOX AI SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY CLEVERNET TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.

 

7.2      Amount In no event will the total aggregate liability of Clevernet in connection with or under these Terms of Service or an Order Form, whether in contract, tort (including negligence or gross negligence), or otherwise, exceed the amount of Fees paid by customer for the BrainBox AI Services in the prior 12-month period immediately preceding the event giving rise to the claim. For greater certainty, the existence of one or more claims will not increase this maximum liability amount.

 

7.3      Type To the maximum extent permitted under applicable law, in no event will Clevernet be liable to the Customer or any third party for any: (i) special, exemplary, punitive, indirect, incidental or consequential damages; (ii) lost savings, profit, data, use, or goodwill; (iii) business interruption; (iv) costs for the procurement of substitute products or services; (v) personal injury or death; or (vi) personal or property damage arising out of or in any way connected to this agreement, regardless of cause of action or the theory of liability, whether in contract, tort (including negligence or gross negligence), or otherwise, and even if notified in advance of the possibilities of such damages.

 

7.4      Indemnification The Customer shall indemnify and hold harmless Clevernet, its officers, agents and employees from and against any claims, demands, or causes of action whatsoever, including without limitation those arising on account of, or arising out of, or resulting from, any failure to perform or comply with this these Terms of Service or an Order Form by the Customer, its subsidiaries or their officers, employees, agents or representatives.

 

7.5      Third-Party Suppliers In no event will BrainBox AI or any third-party suppliers have any liability arising out of or in any way connected to these Terms of Service.

 

8.      General

 

8.1      Publicity Notwithstanding anything to the contrary in these Terms of Service, the Customer agrees to allow Clevernet to use its name, trademark, service mark, trade name, logo or other commercial or product designations, as well as the description of the Locations exclusively for the purposes of marketing the BrainBox AI Services.

 

8.2      Assignment Neither party may assign or delegate its rights, duties or obligations under these Terms of Service without the prior written consent of the other party, which will not be unreasonably withheld, delayed, or conditioned.  Notwithstanding the foregoing, either party may assign all of its rights and obligations under these Terms of Service (i) to a successor-in-interest as a result of a merger or consolidation or in connection with the sale or transfer of all or substantially all of its business or assets to which these Terms of Service relates, or (ii) to an affiliate, without the other party’s approval.  Subject to the foregoing, these Terms of Service will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.

 

8.3      Force Majeure Except with respect to the obligation to pay the Fees or delays or failures caused by the negligent act or omission of either party, any delay in or failure of performance by either party under these Terms of Service will not be considered a breach of these Terms of Service and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, power outages, or failures of the Internet, provided that the party affected by such event will immediately begin or resume performance as soon as practicable after the event has abated. If the act or condition beyond a party’s reasonable control that prevents that party from performing any of its obligations under these Terms of Service continues for thirty (30) days or more, then the other party may terminate these Terms of Service immediately upon written notice to the non-performing party.

 

8.4      No Waiver No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder.  No consent to a breach of any express or implied term of these Terms of Service or of an Order Form shall constitute a consent to any prior or subsequent breach.

 

8.5      Severability If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of these Terms of Service shall be valid and enforceable to the fullest extent permitted by applicable law.

 

8.6      Notices Notices sent to either party will be effective at the time delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the party to whom a notice is being given. Notices must be in writing and sent to the current postal or email address that Clevernet has on file with respect to the Customer. Clevernet may change its contact information by posting the new contact information on Clevernet website or by giving notice thereof to the Customer. The Customer is solely responsible for keeping its contact information on file with Clevernet current at all times during the Subscription Term.