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Term of Service

Posted/Revised: May 14,2017

TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “I AGREE TO THE TERMS OF SERVICE,” CLIENT AGREES TO THESE TERMS AND CONDITIONS.

These Terms of Service constitute an agreement (this “Agreement”) by and between ISN Analytics, a California Corporation whose principal place of business is 2100 Walsh Avenue, Suite C2 Santa Clara CA 95050 (“Braango”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Client”). This Agreement is effective as of the date Client clicks “Accepted and Agreed To” (the “Effective Date”). Client’s use of and Braango’s provision of Braango’s System (as defined below in Section 1.4) are governed by this Agreement.

EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CLIENT’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CLIENT TO THESE TERMS AND CONDITIONS.

  1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.

    1. Client Data means data in electronic form input or collected through the System by or from Client, including without limitation by Client’s Users.

    2. Order” means an order for access to the System placed through Braango.com or go.braango.com.

    3. Privacy Policy means Braango’s privacy policy, currently posted at http://braango.com.

    4. Systemmeans Braango’s Braango system, including the services provided at http://www.braango.com/ or https://go.braango.com/as well as associated voice, text, and other communications services.

    5. SLA” means Braango’s standard service level agreement, currently posted at http://www.braango.com/SLA.

    6. Term” is defined in Section 11.1 below.

    7. User” means any individual who uses the System on Client’s behalf or through Client’s account or passwords, whether authorized or not.

  2. THE SYSTEM.

    1. Use of the System. During the Term, Client may access and use the System pursuant to: (a) the terms of any outstanding Order, including such features and functions as the Order requires; and (b) Braango’s policies posted on its Website at http://braango.com/SLA, as such policies may be updated from time to time.

    2. Service Levels. Braango will provide the remedies listed in the SLA for any failure of the System listed in the SLA. Such remedies are Client’s sole remedy for any failure of the System, and Client recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeit upon termination of this Agreement. Braango is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.

    3. System Revisions. Braango may revise System features and functions or the SLA at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the System materially reduces features or functionality provided pursuant to an Order, Client may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding. If any such revision to the SLA materially reduces service levels provided pursuant to an outstanding Order, the revisions will not go into effect with respect to such Order until the start of the Term beginning 45 or more days after Braango posts the revision and so informs Client.

  3. SYSTEM FEES. Client will pay Braango the fee set forth in each Order (the “Subscription Fee”) for each Term. Braango will not be required to refund the Subscription Fee under any circumstances.

  4. CLIENT DATA & PRIVACY.

    1. Use of Client Data. Unless it receives Client’s prior written consent, Braango: (a) will not access, process, or otherwise use Client Data other than as necessary to facilitate the System; and (b) will not intentionally grant any third party access to Client Data, including without limitation Braango’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Braango may disclose Client Data as required by applicable law or by proper legal or governmental authority. Braango will give Client prompt notice of any such legal or governmental demand and reasonably cooperate with Client in any effort to seek a protective order or otherwise to contest such required disclosure, at Client’s expense.

    2. Privacy Policy. The Privacy Policy applies only to the System and does not apply to any third party website or service linked to the System or recommended or referred to through the System or by Braango’s staff.

    3. Risk of Exposure. Client recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Client assumes such risks. Braango offers no representation, warranty, or guarantee that Client Data will not be exposed or disclosed through errors or the actions of third parties.

    4. Data Accuracy. Braango will have no responsibility or liability for the accuracy of data uploaded to the System by Client, including without limitation Client Data and any other data uploaded by Users.

    5. Data Deletion. Braango may permanently erase Client Data if Client’s account is delinquent, suspended, or terminated.

    6. Excluded Data. Client represents and warrants that Client Data does not and will not include, and Client has not and will not upload or transmit to Braango’s computers or other media, any data (“Excluded Data”) regulated pursuant to law or regulation (the “Excluded Data Laws“). CUSTOMER RECOGNIZES AND AGREES THAT: (a) VENDOR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) VENDOR’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.

    7. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 4, Braango may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Client Data with the following removed: personally identifiable information and the names and addresses of Client and any of its Users or customers.)

  5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.

    1. Acceptable Use. Client will not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System other than as expressly contemplated by this Agreement; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Braango may suspend Client’s access to the System without advanced notice, in addition to such other remedies as Braango may have. This Agreement does not require that Braango take any action against Client or any User or other third party for violating this Section 5.1, or other provisions of this Agreement, but Braango is free to take any such action it sees fit.

    2. Unauthorized Access. Client will take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Client will notify Braango immediately of any known or suspected unauthorized use of the System or breach of its security and will use best efforts to stop said breach.

    3. Compliance with Laws. In its use of the System, Client will comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Client Data. Without limiting the generality of the foregoing: (a) Client will not record calls except with the consent of all the parties to the call; and (b) Client will not use the System for communications that violate the Telephone Consumer Protection Act of 1991 (“TCPA”), as amended; and (c) Client will cease communications with any customer when requested by the customers.

    4. Users & System Access. Client is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Client; and (b) any use of the System through Client’s account, whether authorized or unauthorized.

  6. IP & FEEDBACK.

    1. IP Rights to the System. Braango retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Client any intellectual property license or rights in or to the System or any of its components. Client recognizes that the System and its components are protected by copyright and other laws.

    2. Feedback. Braango has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Client or Users provide to Braango, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Braango’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Client or the User in question. Notwithstanding the provisions of Article 7 below, Feedback will not be considered Confidential Information, provided information Client transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Braango’s products or services.)

  7. CONFIDENTIAL INFORMATION. Confidential Information” refers to the following items Braango discloses to Client: (a) any document Braango marks “Confidential”; (b) any information Braango orally designates as “Confidential” at the time of disclosure, provided Braango confirms such designation in writing within seven (7) business days; and (c) any other nonpublic, sensitive information Client should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Client’s possession at the time of disclosure; (ii) is independently developed by Client without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Client’s improper action or inaction; or (iv) is approved for release in writing by Client. Client is on notice that the Confidential Information may include Braango’s valuable trade secrets.

    1. Nondisclosure. Client will not use Confidential Information for any purpose other than the use of the System to communicate with Client’s clients and workers (the “Purpose”). Client: (a) will not disclose Confidential Information to any employee or contractor of Client unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Client with terms no less restrictive than those of this Article 7; and (b) will not disclose Confidential Information to any other third party without Braango’s prior written consent. Without limiting the generality of the foregoing, Client will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Client will promptly notify Braango of any misuse or misappropriation of Confidential Information that comes to Client’s attention. Notwithstanding the foregoing, Client may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Client will give Braango prompt notice of any such legal or governmental demand and reasonably cooperate with Braango in any effort to seek a protective order or otherwise to contest such required disclosure, at Braango’s expense.

    2. Injunction. Client agrees that breach of this Article 7 would cause Braango irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Braango will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

    3. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate five years after the date of disclosure; provided that such obligations related to Confidential Information constituting Braango’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Client will return all copies of Confidential Information to Braango or certify, in writing, the destruction thereof.

    4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Braango will retain all right, title, and interest in and to all Confidential Information.

    5. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:

      1. Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

      2. Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

  8. REPRESENTATIONS & WARRANTIES.

    1. From Braango. Braango represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Braango’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Braango. In the event of a breach of the warranty in this Section 8.1, Braango, at its own expense, will promptly take the following actions: (a) secure for Client the right to continue using the System; (b) replace or modify the System to make it noninfringing; or (c) terminate the infringing features of the Service and refund to Client any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Client’s right to terminate for breach where applicable, the preceding sentence states Braango’s sole obligation and liability, and Client’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the System.

    2. From Client. Client represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.

    3. Warranty Disclaimers. Except to the extent set forth in the SLA and in Section 8.1 above, CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.

  9. INDEMNIFICATION. Client will defend, indemnify, and hold harmless Braango and the Braango Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Client’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Client’s employees, as well as by Client’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Client Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Client’s account, including without limitation by Client Data; and (d) claims that use of the System through Client’s account harasses, defames, or defrauds a third party; violates the CAN-Spam Act of 2003, the TCPA, or any other law or restriction on electronic advertising or communication. Indemnified Claims include, without limitation, claims arising out of or related to Braango’s negligence. Client’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Client’s expense and payment of judgments. Braango will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Braango Associates” are Braango’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

  10. LIMITATION OF LIABILITY.

    1. Dollar Cap. VENDOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $2,000.

    2. Exclusion of Consequential Damages. IN NO EVENT WILL VENDOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

    3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Braango’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Braango’s liability limits and other rights set forth in this Article 10 apply likewise to Braango’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

  11. Term & Termination.

    1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order(s). Thereafter, the Term will renew for such time as paid for in subsequent orders periods, unless either party refuses such renewal by written notice 30 or more days before the renewal date.

    2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice. Such notice will specify in detail the nature of the breach and will be effective in 30 days, or more if specified in the notice, unless the other party first cures the breach.

    3. Effects of Termination. Upon termination of this Agreement, Client will cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Client to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

    4. No Duty To Preserve Data. Braango expressly disclaims any duty or obligation, implied or express, to maintain Client’s data, either during or after the term of this Agreement. Client will not use Braango as a data preservation, cloud storage, or data backup provider, and will maintain separate copies of its records, including contact information for Client’s customers and communications with Client’s customers.

  12. MISCELLANEOUS.

    1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.

    2. Notices. Braango may send notices pursuant to this Agreement to Client’s email contact points provided by Client, and such notices will be deemed received 24 hours after they are sent. Client may send notices pursuant to this Agreement to legal@braango.com, and such notices will be deemed received 72 hours after they are sent.

    3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

    4. Assignment & Successors. Client may not assign this Agreement or any of its rights or obligations hereunder without Braango’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

    5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

    6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

    7. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts in Santa Clara County, California. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

    8. Conflicts. In the event of any conflict between this Agreement and any Braango policy posted online, including without limitation the Privacy Policy, the terms of this Agreement will govern.

    9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.

    10. Technology Export. Client will not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Braango or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Client will not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).

    11. 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.

    12. Amendment. Braango may amend this Agreement from time to time by posting an amended version at its Website and sending Client written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Client first gives Braango written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Client’s next Term following the Proposed Amendment Date (unless Client first terminates this Agreement pursuant to Article 11, Term & Termination). Client’s continued use of the Service following the effective date of an amendment will confirm Client’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 12.12, Braango may revise the Privacy Policy and Service Level Agreement at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted.

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