These Terms and Conditions (the “Terms”) form a legal agreement between you (either an individual or the entity you represent, “You” or “Customer”) and BrikMate, Inc., a Delaware corporation (“BrikMate”). These Terms become effective on the date you accept them, whether by clicking “I Agree,” signing a Statement of Work or Master Services Agreement that references these Terms, or accessing or using the Platform.
If You and BrikMate have entered into a separately signed Master Services Agreement (“MSA”) or Statement of Work (“SOW”), the terms of that MSA or SOW will govern in the event of any conflict with these Terms.
If You do not agree to these Terms, do not access or use the Platform.
1.1 “Authorized Users” means Customer’s employees and contractors who are authorized by Customer to access and use the Platform.
1.2 “Platform” means the BrikMate software-as-a-service platform, including any websites, portals, online services, and BrikMate Content made available by BrikMate.
1.3 “BrikMate Content” means information, data, reports, models, content, and materials made available through the Platform, whether developed by BrikMate or licensed from third parties.
1.4 “Customer Data” means any data, documents, content, or other information that Customer or its Authorized Users submit to or process through the Platform, including lease documents and information extracted from those documents.
1.5 “Restricted Data” means: (a) payment card numbers and full financial account credentials (such as bank account numbers paired with routing numbers, online banking passwords, or wire instructions); (b) protected health information subject to HIPAA or similar health-data laws; (c) biometric identifiers; (d) information protected under children’s privacy laws; (e) export-controlled information for which Customer has not obtained required licenses; and (f) login credentials, security codes, or passwords other than those issued by BrikMate for use of the Platform. Customer acknowledges that lease documents may contain personal information about guarantors, tenants, and other individuals (such as names, addresses, signatures, and government-issued identification numbers), and the parties agree that such personal information is not Restricted Data and may be processed through the Platform in the ordinary course.
1.6 “Sub-processors” means third-party service providers that BrikMate engages to process Customer Data on its behalf in connection with the Platform.
1.7 “Third-Party Materials” means third-party data, applications, websites, products, services, or materials that are not provided by BrikMate.
2.1 License Grant. Subject to these Terms, BrikMate grants Customer a revocable, limited, non-exclusive, non-transferable, non-sublicensable right to permit its Authorized Users to access and use the Platform solely for Customer’s internal business purposes during the term of these Terms.
2.2 Ownership. The Platform is provided under license, not sold. BrikMate and its licensors retain all right, title, and interest in and to the Platform and BrikMate Content, including all improvements, enhancements, modifications, and updates, and all related intellectual property rights.
2.3 Feedback. If Customer provides BrikMate with suggestions, comments, or other feedback regarding the Platform (“Feedback”), Customer grants BrikMate a perpetual, irrevocable, worldwide, royalty-free license to use and exploit such Feedback for any purpose, including incorporating it into the Platform. BrikMate has no confidentiality obligation with respect to Feedback.
2.4 Third-Party Materials. The Platform may display, include, or interoperate with Third-Party Materials. BrikMate does not control Third-Party Materials and is not responsible for their content, accuracy, or availability. Customer’s use of Third-Party Materials is at Customer’s own risk and subject to the terms of the applicable third party.
Customer will not, and will not permit its Authorized Users or any third party to: (a) copy, modify, translate, adapt, or create derivative works of the Platform, except as expressly permitted; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, underlying ideas, or algorithms of the Platform; (c) sublicense, sell, rent, lease, lend, or otherwise transfer the Platform to any third party, or use the Platform for the benefit of any third party in a service-bureau or similar capacity; (d) remove, alter, or obscure any proprietary notices on the Platform; (e) attempt to gain unauthorized access to the Platform or any related systems or networks; (f) use any scraper, crawler, or automated means to access the Platform other than as expressly permitted; (g) upload or transmit any malicious code; (h) submit Restricted Data to the Platform; or (i) use the Platform in violation of applicable law.
Customer is solely responsible for the security of its Authorized User accounts, credentials, and the equipment used to access the Platform, and for all activity occurring under Authorized User accounts.
4.1 Ownership of Customer Data. As between the parties, Customer owns all right, title, and interest in and to the Customer Data and to any data that is based on or derived from the Customer Data and provided to Customer as part of the Platform.
4.2 BrikMate’s Use of Customer Data. During the term of these Terms, BrikMate will use Customer Data only to provide and support the Platform, to fulfill its obligations under these Terms, and to maintain the security and integrity of the Platform. BrikMate may also use information collected through the Platform to improve and enhance the Platform, perform diagnostic and corrective work, and develop updates, in each case in compliance with this Section 4.
4.3 No Training on Customer Data. BrikMate will not use raw Customer Data to train, fine-tune, or otherwise improve any machine-learning model, foundation model, or other artificial intelligence model. Any data used by BrikMate to improve the Platform will be aggregated and de-identified such that it does not directly or indirectly identify Customer, any Authorized User, or any individual whose information appears in Customer Data.
4.4 Data Residency. BrikMate stores Customer Data in cloud regions located in the United States.
4.5 Sub-processors. BrikMate engages Sub-processors to help deliver the Platform. The current list is published at brikmate.com/subprocessors. For Sub-processors that BrikMate engages directly, BrikMate will provide Customer with at least thirty (30) days’ prior notice before adding a new Sub-processor. For sub-processor changes that originate with an upstream Sub-processor (where BrikMate is itself notified by its own vendor), BrikMate will pass the notice through to Customer within five (5) business days of receipt, regardless of how much advance notice BrikMate received from the upstream Sub-processor. If Customer reasonably objects to a new Sub-processor on documented data-protection grounds within thirty (30) days of BrikMate’s notice, the parties will work in good faith to resolve the objection. If the parties cannot resolve the objection within thirty (30) days of Customer’s objection, Customer may terminate these Terms (and any affected SOW) for the affected functionality and receive a pro-rata refund of any prepaid fees for unused services.
4.6 Security Incidents. BrikMate will notify Customer without undue delay, and in any event within seventy-two (72) hours, after BrikMate becomes aware of any unauthorized access to, acquisition of, or disclosure of Customer Data while in BrikMate’s custody or control. The notice will describe the nature and scope of the incident to the extent then known, the categories and approximate volume of Customer Data affected, the measures BrikMate has taken or proposes to take to contain and remediate the incident, and a contact for follow-up. BrikMate will provide reasonable updates as additional information becomes available.
4.7 Privacy Policy. BrikMate’s Privacy Policy at brikmate.com/privacy describes how BrikMate collects and processes personal information in connection with the Platform and is incorporated into these Terms by reference.
4.8 Data Processing Addendum. Where Customer’s use of the Platform involves processing of personal information subject to the General Data Protection Regulation or the UK GDPR, the parties will execute a Data Processing Addendum, which will be incorporated into and governed by these Terms.
Each party (the “Receiving Party”) may have access to non-public business, technical, or financial information of the other party (the “Disclosing Party”) that is identified as confidential at the time of disclosure or that the Receiving Party should reasonably understand to be confidential (“Proprietary Information”). Customer Data is Proprietary Information of Customer. The Receiving Party will: (a) protect Proprietary Information using at least the same degree of care it uses for its own confidential information of similar nature, but in no event less than reasonable care; and (b) not use or disclose Proprietary Information except as necessary to perform under these Terms. The obligations in this Section apply for five (5) years following disclosure, except that Proprietary Information that constitutes a trade secret will be protected for so long as it remains a trade secret.
Fees, payment terms, and any usage limits are set forth in the applicable SOW or order form. Unless an SOW provides otherwise, fees are due net forty-five (45) days from the date of invoice and are non-refundable except as expressly stated in these Terms or the applicable SOW. Late amounts accrue a finance charge of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is lower. Customer is responsible for all applicable taxes other than taxes on BrikMate’s net income.
7.1 Term. These Terms become effective on the date Customer accepts them and continue until terminated as provided in this Section 7. Where an SOW specifies an initial service term, the term of these Terms with respect to that SOW will run concurrently with the SOW term and any renewal terms set forth in the SOW.
7.2 Termination for Cause. Either party may terminate these Terms upon thirty (30) days’ written notice if the other party materially breaches these Terms and fails to cure the breach within that thirty-day period. BrikMate may terminate immediately and without cure for non-payment or for Customer’s breach of Section 3 (Customer Restrictions).
7.3 Effect of Termination. Upon termination or expiration: (a) Customer’s right to access the Platform ends; (b) all unpaid fees accrued before termination become immediately due; and (c) within thirty (30) days following the effective date of termination, Customer may export Customer Data through the Platform’s standard export mechanisms. After that thirty-day period, BrikMate will purge Customer Data from BrikMate’s systems, subject to (i) standard backup decay schedules and (ii) BrikMate’s right under Section 4.2 to retain aggregated, de-identified information that does not identify Customer or any individual.
7.4 Survival. Sections that by their nature should survive termination or expiration (including Sections 2.2, 3, 4.1, 4.3, 4.6, 4.7, 5, 7.3, 7.4, 8, 9, 10, and 12) will survive.
BrikMate will use commercially reasonable efforts consistent with prevailing industry standards to provide the Platform in a manner that minimizes errors and interruptions. The Platform may be temporarily unavailable for scheduled maintenance, unscheduled emergency maintenance, or causes beyond BrikMate’s reasonable control. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PLATFORM IS PROVIDED “AS IS” AND BRIKMATE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BRIKMATE DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY PARTICULAR RESULTS WILL BE ACHIEVED.
EXCEPT FOR (A) BODILY INJURY, (B) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (C) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, OR LOSS OR INACCURACY OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR THE EXCLUSIONS IN THE PRECEDING PARAGRAPH AND THE SUPER-CAP IN THE PARAGRAPH BELOW, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO BRIKMATE FOR THE PLATFORM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
NOTWITHSTANDING THE FOREGOING, BRIKMATE’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO BREACH OF SECTION 4 (CUSTOMER DATA AND PRIVACY) OR SECTION 5 (CONFIDENTIALITY), INCLUDING ANY DATA SECURITY INCIDENT, WILL NOT EXCEED ONE MILLION DOLLARS ($1,000,000) IN THE AGGREGATE. THIS SUPER-CAP DOES NOT APPLY TO LIABILITY ARISING FROM BRIKMATE’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.
10.1 By BrikMate. BrikMate will defend, indemnify, and hold harmless Customer and its officers, directors, employees, and agents from and against (a) any third-party claim alleging that Customer’s use of the Platform as authorized under these Terms infringes or misappropriates any United States patent, copyright, trademark, or trade secret of such third party (an “IP Claim”); and (b) any third-party claim arising out of BrikMate’s breach of Section 4.3 (No Training on Customer Data). BrikMate will pay damages finally awarded against Customer or amounts agreed to in a settlement approved in writing by BrikMate, together with reasonable attorneys’ fees and costs incurred in connection with the indemnified claim. If the Platform becomes, or in BrikMate’s reasonable opinion is likely to become, the subject of an IP Claim, BrikMate may at its option and expense: (a) procure for Customer the right to continue using the Platform; (b) modify or replace the Platform to make it non-infringing while preserving substantially equivalent functionality; or (c) if neither (a) nor (b) is commercially reasonable, terminate these Terms with respect to the affected functionality and refund any prepaid fees for unused services. BrikMate has no obligation under this Section 10.1 with respect to an IP Claim arising from (i) Customer’s use of the Platform in combination with products or data not provided by BrikMate, where the Platform alone would not be infringing; (ii) modifications not made by BrikMate; (iii) Customer’s use of the Platform in violation of these Terms or applicable law; or (iv) Customer Data. This Section 10.1 states BrikMate’s entire liability and Customer’s sole and exclusive remedy for any third-party claim of intellectual-property infringement or misappropriation and for any third-party claim arising out of breach of Section 4.3.
10.2 By Customer. Customer will defend, indemnify, and hold harmless BrikMate and its officers, directors, employees, and agents from and against any third-party claim arising out of or relating to: (a) Customer’s breach of Section 3 (Customer Restrictions); (b) Customer’s violation of applicable law; (c) Customer Data, including any claim that Customer Data infringes or misappropriates the rights of a third party or violates applicable law; or (d) Customer’s gross negligence or willful misconduct.
10.3 Procedure. The party seeking indemnification will promptly notify the indemnifying party of the claim, give the indemnifying party sole control of the defense and settlement (provided that the indemnifying party may not settle any claim that imposes a non-monetary obligation on the indemnified party without the indemnified party’s prior written consent, which will not be unreasonably withheld), and provide reasonable cooperation at the indemnifying party’s expense.
BrikMate may update these Terms from time to time. If BrikMate makes a material change, BrikMate will provide reasonable advance notice through the Platform, by email, or by posting an updated version of these Terms with a revised “Last Updated” date. Customer’s continued use of the Platform after the effective date of an updated version constitutes acceptance of that version. If Customer does not agree to a material change, Customer may terminate these Terms in accordance with Section 7 and will be entitled to a pro-rata refund of any prepaid fees for unused services as of the effective date of termination.
12.1 Governing Law and Venue. These Terms are governed by the laws of the State of Delaware, without regard to its conflict-of-laws principles. The parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Delaware for any action arising out of or relating to these Terms.
12.2 Order of Precedence. If there is a conflict between these Terms and a signed MSA or SOW, the MSA or SOW will govern. If there is a conflict between an MSA and an SOW, the SOW will govern with respect to the subject matter of that SOW.
12.3 Assignment. Customer may not assign these Terms without BrikMate’s prior written consent. BrikMate may assign these Terms in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, these Terms bind and benefit the parties and their respective successors and permitted assigns.
12.4 Publicity. Neither party will use the other’s name, logo, or trademarks in any external marketing, advertising, press release, or public announcement without the other party’s prior written consent.
12.5 Force Majeure. Neither party will be liable for any failure or delay in performance (other than payment obligations) caused by circumstances beyond its reasonable control, including acts of God, natural disasters, pandemic, war, civil unrest, labor disputes, governmental action, or failures of utilities, communications, or third-party service providers.
12.6 Export Controls. Customer will comply with all applicable U.S. export-control and economic-sanctions laws and will not access or use the Platform from any jurisdiction subject to comprehensive U.S. sanctions or while on any U.S. government restricted-party list.
12.7 Independent Contractors. The parties are independent contractors. These Terms do not create any partnership, joint venture, agency, or employment relationship.
12.8 Severability; Waiver. If any provision of these Terms is held unenforceable, that provision will be limited or eliminated to the minimum extent necessary, and the remainder of these Terms will remain in full force. A party’s failure to enforce a provision is not a waiver of that provision.
12.9 Entire Agreement. These Terms, together with any signed MSA, SOW, Data Processing Addendum, and the Privacy Policy, constitute the entire agreement between the parties regarding the Platform and supersede all prior or contemporaneous communications and proposals on the same subject.
12.10 Notices. Notices to BrikMate must be sent to legal@brikmate.com. Notices to Customer may be sent to the email address associated with Customer’s account or as set forth in the applicable SOW.
12.11 Contact. Questions about these Terms may be directed to legal@brikmate.com.
