Last Modified: April 6, 2020
Effective: April 6, 2020 (unless otherwise agreed to)
PLEASE READ THIS AGREEMENT CAREFULLY.
This Subscription Agreement (this “Agreement”) is a contract between you (“You,” “Your,” or “Customer”) and us (“Us,” “We,” “Our,” or “BrainStorm”). Sometimes, this Agreement will refer to You and BrainStorm individually as a “Party” or collectively as the “Parties.” This Agreement describes the services BrainStorm will provide to You, how the Parties will interact, and other aspects of the business relationship between You and BrainStorm. We cannot provide the Service to You unless You agree to the terms and conditions of this Agreement. By using the Service, You accept and agree to be bound by these terms and conditions.
BrainStorm will periodically update the terms and conditions of this Agreement as provided in Section 6.2 below. You will be notified of any material updates or changes via email or through the Admin Portal.
If to BrainStorm: BrainStorm, Inc.
Ten South Center Street
American Fork, Utah 84003
Attn: Legal Department
To You: Your address as You have provided to Us. We may give electronic notices by general notice via the Service Admin Portal to the emails You provide, via email to Your e-mail address(es) on record in Our account information for You, or as otherwise agreed. We may give notice to You by telephone calls to the telephone numbers on record in Our account information for You. You must keep all of Your account information current.
Effective Date: January 1, 2020
Last Updated: June 18, 2020
WHO WE ARE
BrainStorm is an innovative industry leader in software and services for change management to support business investment in technology. BrainStorm provides learning solutions for its clients’ employees to enable change management and promote maximum effectiveness in the client’s adoption of business and other application software. BrainStorm’s change management and learning solutions include its online, cloud-based QuickHelp™ software application and electronic instructional content, instructor-led training (“ILT”) and immersive cloud-based training and facilitator bootcamp (“CIE”).
WHAT IS PERSONAL INFORMATION?
“Personal Information” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person. Under specific laws, Personal Information may include any information relating to a household.
PERSONAL INFORMATION WE PROCESS
We process Personal Information on behalf of customers, third-party distributors and resellers to fulfill our contractual obligations as a third-party service provider. We also process Personal Information that we collect directly such as when a user navigates to our website or when we engage a vendor or customer. This data may be collected through information you actively submit to us, information provided by our customers, third-party distributors, or resellers who administer your account, or through automated processes.
Personal Information that you actively submit to us
We collect Personal Information that you actively submit to us through your account, website forms, email subscriptions, surveys, events, customer service, inquiries, live chat, social media accounts, and other interactions. You will know when we collect your Personal Information because we will directly ask you for the information. We will require certain Personal Information so you can use our Services or for us to be able to contact you. There may also be circumstances where providing Personal Information is optional and does not impact your access to Services. For example, we provide you an option to include a photo with your profile data in our QuickHelp™ software application.
Personal Information we collect from our customers, third-party distributors, or resellers or other third-party sources
We collect Personal Information from our customers, third-party distributors, or resellers who administer user accounts. Personal Information is collected about the users who are granted access to our Services, including the QuickHelp™ software application. We use this information to create user profiles, assign a User Group, record participation in training, webinars, and use of software products, to assess user ranking, perform analytics, and provide reporting information.
Personal Information collected generally includes a first name, last name, job title, company name, email address, profile photo, and verification information. We authenticate users through their Microsoft Office 365 workplace account.
Personal Information we automatically collect through your use of the Services
We collect some Personal Information automatically when you visit or use BrainStorm Services. This includes information about the device, browser, and operating system you use when accessing our site and Services, your IP address, the website that referred you, which pages you request and visit, and the date and time of each request you make. We may combine this automatically-collected information with other information we collect about you. If you contact us over the telephone or via fax, we may also log telephony information such as your phone number and the type of call.
For QuickHelp™ software application use, we automatically collect Personal Information to, among other things, provide you information and benchmarking based upon your usage of the Services, which are used in analyzing trends, administering the Services, tracking users’ utilization and to gather information about our user community as a whole. For example, if enabled by your administrator, we use third-party services such as Microsoft Graph that help us understand details about your usage of Microsoft Office 365, including without limitation total numbers of communications, methods of making attachments, timing of logging into social media and other details that provide us with statistics about how you interact with the software so that we can better assist you in learning new features and capabilities. BrainStorm does not have any access or ability to read the content of your Microsoft Office 365 usage.
Personal Information not actively collected or processed
We do not actively collect or otherwise process Personal Information from minors. The age of a minor varies by country. For the purposes of Information collected from the European Union, the age of a minor is under age sixteen (16). We do not actively collect or otherwise process Personal Information relating to criminal convictions and offences. We do not actively collect or otherwise process Personal Information revealing racial origin, ethnic origin, political opinions, religious beliefs, philosophical beliefs, trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.
Tracking Technologies, Cookies, And Clear Gifs
We use tracking technologies, cookies and clear GIFs to collect information. Tracking technologies are used to collect information from your web browser through our servers or filtering systems when you visit any of our sites.
Cookies store small text files onto a user’s computer hard drive with the user’s browser, containing the session ID and other data. Cookies enable a web site to track a user’s activities on the website for the following purposes: (1) enable essential features; (2) provide analytics to improve website performance and effectiveness; (3) store user preferences; and (4) facilitate relevant targeted advertising on advertising platforms or networks. Users are free to change their web browsers to prevent the acceptance of cookies. Cookies may also be set within emails in order to track how often our emails are opened.
A clear GIF is a transparent graphic image placed on a website. The use of clear GIFs allows us to monitor your actions when you open a web page and makes it easier for us to follow and record the activities of recognized browsers. Clear GIFs are used in combination with cookies to obtain information on how visitors interact with our websites.
Information collected may include but is not limited to your browser type, your operating system, your language preference, any referring web page you were visiting before you came to our site, the date and time of each visitor request, and information you search for on our sites. We can also track the path of page visits on a website and monitor aggregate usage and web traffic routing on our sites. We collect this information to better understand how you use and interact with our sites in order to improve your experience. We also collect this information to better understand what services and marketing promotions may be more relevant to you. We may also share this information with our employees, service providers and customer affiliates.
You can change your web browser settings to stop accepting cookies or to prompt you before accepting a cookie from the sites you visit. If you do not accept cookies, however, you may not be able to use some sections or functions of our sites. To find out more about cookies, including how to see what cookies have been set and how to manage and delete them, visit http://www.allaboutcookies.org. To opt out of being tracked by Google Analytics across all websites visit https://tools.google.com/dlpage/gaoptout.
HOW WE USE YOUR PERSONAL INFORMATION
We use your Personal Information to operate our Services, fulfill our contractual obligations in our service contracts with customers, third-party distributors and resellers, to review and enforce compliance with our Terms and Conditions agreement, guidelines, and policies, to analyze the use of the Services in order to understand how we can improve our content and service offerings and products, and for administrative and other business purposes. We process Personal Information for payments, employee training, sales and marketing, data analysis, security monitoring, auditing, research, and to comply with applicable laws, exercise legal rights, and meet tax and other regulatory requirements.
In this context, the legal basis for our processing of your Personal Information is either the necessity to perform contractual and other obligations, our legitimate business interest as a provider of change management services and software, regulatory requirements, or your explicit consent.
SHARING OF PERSONAL INFORMATION
We do not sell your Personal Information!
We may share your Personal Information in the following circumstances:
We share Personal Information with our customers, generally the employer, or the agent assigned to administer your user account. The information shared relates to your participation in training and webinars and your use of software products. If requested by our customers, we also provide an employee ranking of all users assigned to a User Group. Similarly, your Personal Information may be shared with our third-party distributors and resellers, who administer your user account on behalf of your employer.
Your User Group
Our Services are focused on workplace participation. As such, employees are assigned to a User Group. Where the ranking feature has been activated, the rankings of all users in a User Group along with the user’s name, job title, photo, badges earned, and allocated points are made available to the entire User Group.
Third-party Service Providers
We may share information we collect about you with third-party service providers to perform tasks on our behalf in supporting the Services. The types of service providers, or sub-processors, to whom we entrust Personal Information include: (i) technology providers; (ii) providers of hosting services; (iii) email delivery service providers; (iv) sales and marketing providers; (v) technical support services; (vi) providers of analytic data services; and (vii) utilization services.
Regulatory Bodies, Public Authorities, and Law Enforcement
We may access and disclose your Personal Information to regulatory bodies if we have a good-faith belief that doing so is required under applicable law or regulation. This may include submitting Personal Information required by tax authorities. We may disclose your Personal Information in response to lawful requests by public authorities or law enforcement, including to meet national security or law enforcement requirements. If we are going to release your Personal Information in this instance, our policy is to provide you with notice unless we are prohibited from doing so by law or court order.
Merger, Sale, or Other Asset Transfers
We may also disclose your Personal Information to exercise or defend legal rights; to take precautions against liability; to protect the rights, property, or safety of the Services, of any individuals, or of the general public; to maintain and protect the security and integrity of our services or infrastructure; to protect ourselves and our services from fraudulent, abusive, or unlawful uses; or to investigate and defend ourselves against third-party claims or allegations. Disclosures may be made to courts of law, attorneys and law enforcement, or other relevant third parties in order to meet these purposes.
Please note that we share aggregated information and non-identifying information with third parties for industry research and analysis, demographic profiling, and other similar purposes. In addition, our Services may contain links to other websites not controlled by us, and these other websites may reference or link to our Services; we encourage you to read the privacy policies applicable to these other websites.
In cases of onward transfers of Personal Information received pursuant to the EU-U.S. Privacy Shield Framework or Swiss-U.S. Privacy Shield Framework (“Privacy Shield”) to third parties of data of individuals located in the European Economic Area (“EEA”), United Kingdom (“UK”), or Switzerland , BrainStorm remains liable for such Personal Information and the actions of such third parties.
California Consumer Privacy Act of 2018 (“CCPA”)
The categories of Personal Information we have collected about consumers and disclosed about consumers for a business purpose in the preceding 12 months are:
RETENTION OF PERSONAL INFORMATION
BrainStorm retains Personal Information for a reasonable time period to fulfill the processing purposes mentioned above, including retaining personal information to fulfil our obligations under service agreements. Personal Information is then archived for time periods required or necessitated by law or legal considerations. When archival is no longer required, Personal Information is deleted from our records.
You may choose to disable your BrainStorm account at any time. This means your user profile will no longer be visible on the Services. However, for the purposes mentioned above, we may need to retain information within our internal systems.
We retain Personal Information that we are required to retain to meet our regulatory obligations including tax records and transaction history. We regularly review our retention policy to ensure compliance with our obligations under data protection laws and other regulatory requirements. We regularly audit our databases and archived information to ensure that Personal Information is only stored and archived in alignment with our retention policies.
PROTECTION OF PERSONAL INFORMATION
BrainStorm uses technical and organization measures to protect the personal information that we store, transmit, or otherwise process, against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access. We regularly consider appropriate new security technology and methods as we maintain and develop our software and systems.
BrainStorm hosts QuickHelp in Microsoft’s cloud computing service known as Azure. Full details on Azure’s data center may be found here. We work to protect the security of your information during transmission by using Secure Sockets Layer (SSL) software, which encrypts information you input. However, no method of transmission or storage is 100% secure. While we strive to use commercially reasonable and appropriate means to protect your personal information, we cannot guarantee its absolute security.
If you have any questions about security on our website, you can e-mail us at email@example.com with "Questions about Data Security" in the subject line.
INTERNATIONAL DATA TRANSFER
Your Personal Information may be transferred to, and maintained on, computers located outside of your state, province, country, or other governmental jurisdiction where the privacy laws may not be as protective as those in your jurisdiction. If you are located outside the United States and choose to provide your Personal Information to us, we will transfer your Personal Information to the United States and process it there. Where we transfer your Personal Information, we will take all reasonable steps to ensure that your privacy rights continue to be protected.
In the case of transfers of data out of the European Economic Area or the United Kingdom, we have committed to comply with the Privacy Shield. We endeavor to utilize third-party service providers from the United States that have certified with Privacy Shield or alternatively provide adequate protections that are compliant with the EU General Data Protection Regulation (“GDPR”) such as implementing Standard Contractual Clauses or Binding Corporate Rules.
OUR COMMITMENT TO THE PRIVACY SHIELD
As part of its participation in Privacy Shield, BrainStorm is subject to the investigatory and enforcement powers of the Federal Trade Commission. Organizations participating in the Frameworks must respond within 45 days of receiving a complaint. If you have not received a timely or satisfactory response to your question or complaint, please contact the JAMS Privacy Shield Program. Their website can be accessed at: https://www.jamsadr.com/eu-us-privacy-shield.
Please note that this independent dispute resolution body is designated to address complaints and provide appropriate recourse free of charge to the individual. If an individual’s complaint cannot be resolved through BrainStorm’s internal processes, BrainStorm will cooperate with JAMS pursuant to the JAMS International Mediation Rules, available on the JAMS website at https://www.jamsadr.com/international-mediation-rules/. JAMS mediation may be commenced as provided for in the relevant JAMS rules. The mediator may propose any appropriate remedy, such as deletion of the relevant personal data, publicity for findings of noncompliance, payment of compensation for losses incurred as a result of noncompliance, or cessation of processing of the personal information of the individual who brought the complaint. The mediator or the individual also may refer the matter to the Federal Trade Commission. Under certain circumstances, individuals also may be able to invoke binding arbitration to address complaints about BrainStorm’s compliance with the Privacy Shield Principles.
Residents of the European Economic Area, United Kingdom and Switzerland
In compliance with the Privacy Shield, individuals have the right to access personal information and to correct, amend, restrict, or delete that information where it is inaccurate, or has been processed in violation of the Privacy Shield principles, except where the burden or expense of providing access is disproportionate to the risks to the individual’s privacy in the case in questions, or where the rights of persons other than the individual will be violated.
Privacy Shield ensures compliance with the EU General Data Protection Regulation, which grants rights to individuals in their personal data. These rights include the right to: (i) request access to and rectification or erasure of their Personal Information; (ii) obtain restriction of processing or to object to processing of their Personal Information; (iii) ask for a copy of their Personal Information to be provided to them, or a third party, in a digital format; and (iv) lodge a complaint about the processing of their Personal Information with their local data protection authority. If you wish to exercise one of the above-mentioned rights, please send us your request to the contact details set out below. To delete your personal information from the QuickHelp™ software application, you can select the DELETE DATA button available under the Privacy & Data menu. To access your personal information from the QuickHelp™ software application, you can select the REQUEST DATA button available under the Privacy & Data menu. You may also access software features to action certain rights, as described under the “All Users” section below.
Residents of California
Personal Information subject rights under the CCPA may also apply to certain individuals and households. These rights include the right to: (i) know what Personal Information is being collected about them, (ii) know whether their Personal Information is sold or disclosed at to whom, (iii) say no to the sale of Personal information, (iv) access their Personal Information, and (v) equal service and price, even if they exercise their privacy rights. If you are a resident of California and wish to exercise one of the above-mentioned rights, please send us your request to the contact details set out below. To access your personal information from the QuickHelp™ software application, you can select the REQUEST DATA button available under the Privacy & Data menu. You may also access software features to action certain rights, as described under the “All Users” section below.
BrainStorm respects and honors privacy rights and provides features for managing Personal Information that are available to all users.
Where we rely upon consent as a legal basis for processing, you may withdraw your consent at any time. Please note the withdrawal of your consent does not affect the lawfulness of processing based on consent before withdrawal.
CHANGES TO THIS POLICY
Inquiries may be made by contacting us through any of the following means:
Attn: Data Protection Officer
Ten South Center Street
American Fork, UT 84003
United States of America
This BrainStorm, Inc. Data Protection Addendum (“DPA”) is between the parties with respect to the terms governing the Processing of Personal Data under the BrainStorm QuickHelp Subscription Agreement (the “Master Agreement”). This DPA sets out the additional terms, requirements and conditions on which BrainStorm, as Provider (defined below), will obtain, handle, process, disclose, transfer, or store Personal Information (defined below) when providing services under the Master Agreement. This DPA serves as an addendum to the Master Agreement and is effective upon its incorporation into the Master Agreement, which incorporation may be specified in the Master Agreement, the Order Form (as defined in the Master Agreement), or as otherwise agreed to between the parties.
BrainStorm will periodically update the terms and conditions of this DPA. You will be notified of any material updates or changes via email or through the Admin Portal.
Terms not otherwise defined in this DPA shall have the meaning as set forth in the Master Agreement.
“Business Purpose” means the services described in the Master Agreement or any other purpose specifically identified in Appendix A.
“Customer” shall mean the Customer defined in the Master Agreement or Order Form, and who shall determine the purpose and means of the Processing of Personal Information.
“Data Subject” means an individual who is the subject of Personal Information.
“Personal Information” means any information the Provider processes for the Customer that (a) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in the Provider’s possession or control or that the Provider is likely to have access to, or (b) the relevant Privacy and Data Protection Requirements otherwise define as protected personal information.
“Processing, processes, or process” means any activity that involves the use of Personal Information or that the relevant Privacy and Data Protection Requirements may otherwise include in the definition of processing, processes, or process. It includes obtaining, recording, or holding the data, or carrying out any operation or set of operations on the data including, but not limited to, organizing, amending, retrieving, using, disclosing, erasing, or destroying it. Processing also includes transferring Personal Information to third parties.
“Privacy and Data Protection Requirements” means all applicable federal, state, and international laws and regulations relating to the processing, protection, or privacy of Personal Information, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction.
“Provider” shall mean BrainStorm, Inc., a Delaware corporation with offices located at Ten South Center Street, American Fork, Utah 84003, who shall process Personal Information on behalf of the Customer.
“Security Breach” means any act or omission that compromises the security, confidentiality, or integrity of Personal Information or the physical, technical, administrative, or organizational safeguards put in place to protect it. The loss of or unauthorized access, disclosure, or acquisition of Personal Information is a Security Breach whether or not the incident rises to the level of a security breach under the Privacy and Data Protection Requirements.
For the Customer: (i) to the points of contact Customer designates in the Master Agreement or Order Form, or (ii) to the Customer’s Admins such as Customer may identify in the QuickHelp Admin Portal;
For the Provider: BrainStorm, Inc. Ten South Center Street, American Fork, Utah 84003, firstname.lastname@example.org.
Personal Information Processing Purposes and Details
Business Purposes: To provide Customer with the Service, as set forth in the Master Agreement.
Personal Information Categories: The personal data transferred includes the name, work email, title, department, IP address, and other data in an electronic form in the context of Provider’s Service.
Data Subject Types: The data subjects include Customer’s representatives and end-users, primarily Customer’s employees, but also, potentially, contractors, affiliates and their affiliate’s employees and contractors, and collaborators thereof.
Approved Subcontractors: Microsoft Azure (hosting services); Google Analytics (data analytics); HubSpot (communications platform within the Service), and SendGrid (email messaging tool within the Service)
Provider’s legal basis for receiving Personal Information with cross-border transfer restrictions: EU/US Privacy Shield Certified
Provider will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the data uploaded to the service, as described in the Master Agreement or in this DPA, or otherwise made reasonably available by Provider. The security practices described int his Appendix B are currently observed by Provider. Although it reserves the right to modify or update these practices, Provider will not materially decrease the overall security of the Service during a subscription term.
PHYSICAL ACCESS CONTROLS: QuickHelp is hosted in Microsoft Azure, a multi-tenant environment. The physical and environmental security controls are audited for SOC 2 Type II compliance, among other certifications.
SYSTEM ACCESS CONTROLS: Access controls within the Service are designed to permit role-based access control using least privileged access principals. Provider utilizes multi-factor authentication for access to management system portals.
DATA ACCESS CONTROLS: Users of the Service have access to non-public data via the application. Customers and their users are not allowed direct access to the underlying infrastructure of the Service. Only Provider has direct access to Customer data and Customer’s Personal Information. The authorization protocols is designed to permit only designated individuals access to the underlying infrastructure. Authorization to data sets is performed through validating the user’s permissions against the attributes associated with each data set.
TRANSMISSION CONTROLS: Provider encrypts all QuickHelp data and Personal Information at rest and in-transit using HTTPS encryption.
INPUT CONTROLS: Provider logs information regarding system behavior, system authentication, and other application requests. Utilizing Azure Threat Detection, Provider is able to monitor and be responsive to malicious, unintended, or anomalous activities. Provider also maintains a record of security incidents. Any suspected or confirmed security incident is investigated by Provider’s personnel, who then identify appropriate steps to resolve the incident and minimize damage or unauthorized disclosure (if any).
DATA BACKUPS. By hosting the Service in Azure, Provider is able to ensure redundancy and fail-over protections, including geo-redundancy. All databases are backed up and maintained using industry standard methods.
Standard Contractual Clauses
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
The Customer, as defined in the Subscription Agreement (the “data exporter”)
BrainStorm, Inc., 10 South Center Street, American Fork, Utah 84003 (the “data importer”)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1: Definitions
For the purposes of the Clauses:
Clause 2: Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3: Third-party beneficiary clause
Clause 4: Obligations of the data exporter
The data exporter agrees and warrants:
Clause 5: Obligations of the data importer
The data importer agrees and warrants:
Clause 6: Liability
Clause 7: Mediation and jurisdiction
Clause 8: Cooperation with supervisory authorities
Clause 9: Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10: Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11: Sub-processing
Clause 12: Obligation after the termination of personal data processing services
Appendix 1 to the Standard Contractual Clauses
This Appendix forms part of the Clauses.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is the Customer listed under the DPA.
The data importer is BrainStorm, Inc.
Please see Appendix A of the DPA.
Categories of data
Please see Appendix A of the DPA.
Special categories of data (if appropriate)
The parties do not anticipate the transfer of special categories of data.
Please see Appendix A of the DPA.
Appendix 2 to the Standard Contractual Clauses
This Appendix forms part of the Clauses.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Please see Appendix B of the DPA.
This Content Submission Policy (this “Policy”) covers any Content (as defined below) submitted by you, the customer (“You”), a user of BrainStorm, Inc.’s (“BSI”) online, cloud-based QuickHelp™ software application (the “Service”), and is incorporated by reference to the QuickHelp Subscription Agreement (the “Agreement”) covering the Service. Terms not otherwise defined in this Policy shall have the meaning as set forth in the Agreement.
The Service, among other things, allows certain authorized users to submit content to the Service and BSI is willing to allow You to submit content to the Service and to otherwise access and use the additional functionality of the Service in accordance with the terms of the Agreement and this Policy. Except as otherwise provided in this Policy, the terms of the Agreement will continue to govern Customer’s and Your access to and use of the Service. Unless otherwise agreed to in a separate writing between BSI and Customer, this Policy sets out the general duties that all of Customer’s users of the Service must follow with regard to any Content they submit to the Service.
BY SUBMITTING CONTENT TO THE SERVICE, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS POLICY. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT UPLOAD OR SUBMIT ANY CONTENT TO THE SERVICE.
The following terms apply to the Professional Services to be provided by BrainStorm to Customer. This addendum (this “Addendum”) is incorporated into BrainStorm Subscription Agreement (the “Agreement”) above.
The parties hereby agree as follows:
These BrainStorm, Inc. (“BrainStorm” or “We”) Instructor-Led (“ILT”) Terms and Conditions are applicable to all ILT Services, unless otherwise mutually agreed to by the parties. For the purposes of these Terms and Conditions, “ILT Services” consists of the instructor led training services described in the attached Quote or Statement of Work (collectively, the “SOW”).
Fees & Expenses
In consideration of BrainStorm’s performance of the ILT Services, You agree to pay BrainStorm the fees and expenses described in the SOW (the “Training Fees”). All Training Fees are due and payable within 30 days of the date of the invoice. Any amounts that are unpaid after the due date shall be subject to a late fee of 1.5% per month, or the highest rate allowed by law if lower, from the due date until such amounts are paid. Without limiting its rights or remedies hereunder, BrainStorm shall have the right to suspend the Services if any payment is not received within 30 days of the invoice date. Client shall be responsible for any taxes imposed on the Services, other than taxes measured by any net income derived by BrainStorm.
ILT Services Policies
The following policies are subject to change at any time and for any reason.
All trainings must be scheduled and confirmed at least twenty (20) business days prior to the start date of the requested training. Customers scheduling a training within fifteen (15) business days of the start date will be charged a scheduling rush premium of thirty percent (30%) of the price for the services delivered and flat travel rate within the rush period.
The customer will confirm and provide BrainStorm with the training location for all onsite trainings no later than ten (10) business days prior to the start date of the training. If a customer confirms a training under (10) business days prior to the start date of the training, customers will be charged actual travel costs.
One training day is defined as a consecutive, 10-hour time period between 8:30 a.m. – 8:00 p.m. EST/EDT. This 10-hour consecutive time includes a one-hour prep period, 30-minute breaks between sessions, and a one-hour lunch break. If sessions need to be scheduled outside of these hours, this preference must be indicated upon requesting training dates. Training outside of BrainStorm’s supported training hours has an associated price premium. Finally, when delivering training outside of BrainStorm’s standard hours, the customer understands there is limited technical support available from BrainStorm.
Buzz Session - Attendee Limit
Buzz Sessions are capped at 200 attendees per session, and are priced accordingly.
Cancellation and Rescheduling Policy
Customers cancelling or rescheduling confirmed training dates within fifteen (15) business days of the start date will be charged fifty percent (50%) of the total cost of canceled or rescheduled services + non-refundable travel expenses. Canceling or rescheduling confirmed training dates within ten (10) business days of the start date will incur 100% the cost of canceled services + non-refundable travel expenses.
Recording and Distribution Policy
BrainStorm does not allow the recording or distribution of any instructor-led training service.
Curriculum Customization Policy
Any customization of the training curriculum must be finalized at least ten (10) business days prior to the start date of training. Customizations that are not finalized at least ten (10) business days prior to the start date are not guaranteed to be implemented during the training.
Online Training Policy
BrainStorm has assembled a best-in-class technology solution and has further added redundancies to ensure seamless trainings. 95% of the time these trainings are completed without incident. However, due to specific client technology setups, internet speed variability, etc., there are rare occasions where users may experience technology issues or failure.
To mitigate most issues, BrainStorm will conduct a tech check session prior to online training events and provide troubleshooting documentation to all clients. This documentation includes step-by-step resolution for common issues and tech support contact information.
In the event that a training has to be cancelled, we are unable to deliver the agreed upon curriculum, or the majority of users are unable to access the training environment due to technology issues, we will offer a make-up session to ensure all users have the opportunity to complete the training.
We monitor and evaluate our online meeting technology on an ongoing basis to ensure we are providing the best possible experience for our clients. As technology changes, we will continue to adopt best- in-class solutions.
Online Training Audio Solutions
BrainStorm’s primary audio options for virtual training are:
Please note that BrainStorm’s primary conference bridge is a toll conferencing solution. Any costs incurred by callers are based solely on the caller's long-distance plan with their provider. Most providers do not charge for long distance calling. However, if unsure, please verify with your provider that this is the case.
We recommend participants outside of the US or Canada use the VoIP solution. Using the toll conference bridge will result in a long-distance charge to callers outside of North America, rates varying by provider.
You may also choose to supply their own conference bridge for a virtual training. Note that in this case, the audio is not integrated with VoIP.
Materials; Intellectual Property Rights
As part of the ILT Services, BrainStorm may provide You with handouts or other written materials (the “Materials”). BrainStorm hereby grants You a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to retain and use all such Materials for Your internal business purposes. BrainStorm retains all ownership and all intellectual property rights in and to such Materials.
The ILT Services that BrainStorm will provide may be in support of Your purchase or license, under separate agreement(s), of BrainStorm’s QuickHelp™ software (the “Software”) and/or BrainStorm’s Quick Start™ Cards (the “Cards”). Such separate agreement(s) shall govern Your use of the Software and/or the Cards. Neither these Terms and Conditions nor any Statement of Work grants You any right or license to access or use such Software or Cards.
You acknowledge that BrainStorm’s obligations hereunder are limited to providing the Services and BrainStorm shall not be deemed to have guaranteed any results or the achievement of any certain performance levels as a result of the Services. BRAINSTORM PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. ACCORDINGLY, BRAINSTORM EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE OR COURSE OF DEALING.
BrainStorm agrees to defend You against any claim, demand, suit, or proceeding (each, a "Claim") made or brought against You by a third party alleging that the ILT Services infringe or misappropriate the intellectual property rights of such third party and to indemnify You from any damages finally awarded by a court of competent jurisdiction against You or amounts agreed to in settlement in connection with any such Claim. BrainStorm’s obligations under this Section shall only apply to the extent that: (a) You promptly notify BrainStorm in writing of the Claim; (b) BrainStorm has control of the defense and all related settlement negotiations relating to the Claim; and (c) You provide BrainStorm with the assistance, information and authority reasonably necessary to perform the above. The foregoing constitutes BrainStorm’s total liability with respect to any Claim. Should BrainStorm’s right to provide the ILT Services pursuant to these Terms and Conditions be subject to a Claim of infringement or if BrainStorm reasonably believes such a Claim of infringement may arise, BrainStorm may, at its option and in its sole discretion and at no cost to Client: (i) procure the right to continue to provide the ILT Services; (ii) modify the ILT Services to render them non-infringing; or (iii) immediately cease providing the ILT Services.
“Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party to the other that is identified as confidential or the confidential nature of which is reasonably apparent. Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no fault of the receiving Party; (b) was in the receiving Party’s lawful possession prior to the disclosure; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure or any breach of confidence; (d) is independently developed by the receiving Party; or (e) is required to be disclosed by law. Each Party agrees to hold the other’s Confidential Information in confidence, and to not use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL BRAINSTORM BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THE ILT SERVICES OR THESE TERMS AND CONDITIONS, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS; OR (II) ANY AMOUNTS THAT IN THE AGGREGATE ARE IN EXCESS OF THE AMOUNTS YOU PAY TO BRAINSTORM, REGARDLESS OF WHETHER BRAINSTORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Except for the payment of money, neither Party shall be liable for any delays or nonperformance resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, act of God, strike or labor dispute, failures or outages of the Internet or other information transmission systems, war or other violence, or any law, order, or requirement of any governmental agency or authority.
It is understood and agreed that each Party hereto is an independent contractor and that neither Party is, nor shall be considered to be, the other’s agent, partner, fiduciary, joint venturer, co-owner, or representative. Neither Party shall act or represent itself, directly or by implication, in any such capacity or in any manner assume or create any obligation on behalf of, or in the name of, the other.
You may not assign or transfer the ILT Services or these Terms and Conditions without the prior written consent of BrainStorm, and any attempt to do so shall be void. Subject to the foregoing, the ILT Services or these Terms and Conditions shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns. Any notice required to be given hereunder by either Party shall be in writing and shall be delivered personally or sent by certified or registered mail, postage prepaid, or by private courier to the other Party to the address set forth in the SOW, or to such other address as either Party may designate from time to time. No waiver of any of the provisions of these Terms and Conditions shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Any waiver, modification or amendment of any provision of the ILT Services or these Terms and Conditions shall be effective only if in writing in a document that specifically refers to the ILT Services or these Terms and Conditions and such document is signed by both of the Parties hereto. If any provision of these Terms and Conditions shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these obligations shall otherwise remain in full force and effect and enforceable. The ILT Services and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Utah, without reference to choice of law principles. The Parties hereby submit themselves to the exclusive jurisdiction of the federal and state courts located in Salt Lake City, Utah. In the event of any litigation or arbitration arising out of the ILT Services or these Terms and Conditions, the prevailing Party shall be entitled to be reimbursed for all reasonable costs and expenses, including reasonable attorneys’ fees incurred in connection with such litigation or arbitration. Without limiting the foregoing, You agrees to pay all costs and expenses incurred by BrainStorm in any attempt to collect any amount due to BrainStorm for the provision of the ILT Services, including all costs of legal action and reasonable attorneys’ fees. These Terms and Conditions constitute the full and complete understanding and agreement of the Parties hereto with respect to the subject matter covered herein and supersedes all prior oral or written understandings and agreements with respect thereto. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that either of the Parties may use in connection with the Services will have any effect on the rights, duties or obligations of the Parties under, or otherwise modify, the ILT Services or these Terms and Conditions, regardless of any failure of the other Party to object to such terms, provisions or conditions. BrainStorm may, in its reasonable discretion, use subcontractors to perform any of its obligations hereunder. Your rights under these Terms and Conditions are non-exclusive and nothing herein shall be deemed to prohibit BrainStorm from providing training or other services that are similar to the ILT Services for its other customers and clients.
PLEASE READ THIS LICENSE AGREEMENT CAREFULLY. BY UTILIZING THE LICENSED WORKS YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT UTILIZE THE LICENSED WORKS, BUT CAN OBTAIN A REFUND.
This Quick Start Card License Agreement (this “Agreement”), is entered into by and between BrainStorm, Inc, a Delaware corporation, with principal offices at 10 South Center Street, American Fork, Utah 84003 (the “Licensor”), and YOU (the “Licensee”). This Agreement is effective as of the Effective Date of our Order Form or the date You download the Licensed Works (defined below), whichever is earlier (the “Effective Date”).
WHEREAS, Licensor owns the Quick Start Cards, which contain step-by-step instructions on how to use one or more off-the-shelf software programs on an electronic portable document format (.pdf) as further set forth Your Order Form (the “Licensed Works”). Licensee desires to license from Licensor certain rights with respect to the Licensed Works, as more fully set forth below.
NOW THEREFORE, in consideration of the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
(a) The parties hereto hereby certify that each has read and understands the terms hereof. Any term hereof may be amended or waived only with the written consent of both parties or their respective successors and assigns. This Agreement may be assigned only with the written consent of the both parties. This Agreement shall inure to the benefit of, and is binding upon the heirs, executors, administrators, successors, and assigns of the parties. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument. If any provision hereof is held by a court of competent jurisdiction to be void or unenforceable for any reason, the remaining provisions hereof shall nevertheless continue in full force and effect. This Agreement (including Schedule A and the invoice issued in connection herewith) constitutes the entire agreement between the parties hereto with respect to the subject matters covered by it, and supersedes all prior oral or written agreements between the parties hereto relating to such matters. All notices, requests and other communications to any party hereunder will be in writing and will be given to such party at its address stated in the invoice issued by Licensor to Licensee. In the event that a party hereto who is required to engage the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, regardless of whether such action results in litigation, such party shall be entitled to the reimbursement by the other party of all reasonable attorneys' fees and court costs incurred by the successful party. This Agreement shall be governed by the laws of the State of Utah without regard to its conflicts of laws rules. Each of the parties hereto consents to the exclusive jurisdiction and venue of the courts of the State of Utah or the Federal District Court for the District of Utah.
(b) The parties hereto acknowledge and agree that a violation of this Agreement may result in irreparable injury to the non-breaching party hereto, the exact amount of which may be difficult to ascertain and the remedies at law for which will not be reasonable or adequate compensation to the non-breaching party hereto for such a violation. Accordingly, each party hereto agrees that if it violates any of the provisions of this Agreement, in addition to any other remedy available at law or in equity, the other party hereto will be entitled to seek specific performance or injunctive relief without posting a bond, or other security, and without the necessity of proving actual damages.
Legal and Privacy Notices
This website is owned and operated by BrainStorm, Inc (BrainStorm) at https://www.brainstorminc.com. The material contained within this website is periodically checked for accuracy and is presented without any warranties, either expressed or implied. BrainStorm, will assume no, and hereby disclaims any, responsibility for any errors or omissions of this website's content. BrainStorm shall not be responsible for any damages incurred as a result of the content or use of this website.
By using the material at this website, all users agree to all terms and conditions contained in this website, which are subject to change without notice, as well as all applicable laws, and do so at their own risk. All changes to this legal notice will be posted to this website in a timely manner.
Materials contained within this website are intended for U.S. residents. While BrainStorm does ship internationally, any deliveries requested for addresses outside the U.S. are subject to refusal by BrainStorm, Inc.
Any link between BrainStormInc.com and any other website does not constitute an endorsement of the linked site. BrainStorm does not make and hereby disclaims any warranty as to the content of any other website linked to BrainStormInc.com. Exercise caution when communicating or interacting with any website.
This website and all information contained herein are provided "as is" and without warranties of any kind, express or implied. BrainStorm shall not be liable for any damages whatsoever arising out of or relating to the use by any person of this site, including but not limited to direct, indirect, consequential or punitive damages, including damages to hardware or software resulting from use of this site.
Any questions regarding these legal notices may be directed to:
Ten South Center
American Fork, UT
Our Pricing Policy
BrainStorm is committed to offering quality merchandise at fair, competitive prices. In most cases, the internet prices will reflect prices available by calling or otherwise contacting BrainStorm. However, there may be some exceptions. Prices and sales are subject to change without notice.
Our Return Policy
We are confident that you will be satisfied with your BrainStorm purchase. However, should you decide that the item(s) that you have purchased does not, for some reason, meet your needs, BrainStorm will accept returns for in-store credit (less original shipping amount) based on the following Return Policy:
Please mail return item(s) to BrainStorm at one of the following addresses:
United States Postal Service:
Attn: Returns Department
Ten South Center
American Fork, UT
FedEx or UPS:
Attn: Returns Department
Ten South Center
American Fork, UT
Please note that return postage, and lost and damaged packages will be the responsibility of the returner. BrainStorm strongly suggests that you insure your return package. If you have any questions about BrainStorm's return policy, please email email@example.com.
Our Cancellation Policy
Customers cancelling within twenty (20) business days of the start date will be charged fifty percent (50%) of the total cost of services. Canceling within ten (10) business days of the start date will incur the total cost of services. Any such fee charged will not be applied to the price of any rescheduled courses. Customer will always incur any non-refundable travel expenses associated with a course cancellation.
Our Rescheduling Policy
Customers rescheduling within ten (10) business days of the start day of training will incur the cost of any non-refundable or change charges incurred for travel arrangements. Any rescheduling within five (5) business days of the start day of training will incur fifty percent (50%) of the total cost of services along with any non-refundable or change charges incurred.
Our Privacy Statement
BrainStorm will not share any information about our customers which we collect at our website with anyone. If you provide us with your personal information, comments, or requests for information, we keep your personal information private. We value your privacy as much as you do.
No unauthorized parties will be allowed access to your personal information and we will not sell or otherwise knowingly make your information available to anyone outside our organization, unless required to do so by law. As a customer, your information may be applied to our in-house marketing programs to inform you of product arrivals and other items we think you might find of interest. If you begin receiving materials from us and wish to have them stopped, simply contact us.
Privacy is of great importance on the internet. Technology is constantly changing, and we will change along with it. We will be on constant guard against piracy, and implement whatever measures are required to give you the most secure experience we can reasonably provide. We reserve the right to change this policy, and to apply any changes to information previously collected, as permitted by law.
Our site may link to other sites not controlled by BrainStorm. We are not responsible for the privacy or security practices of any other websites.
We reserve the right to change this policy at any time without notice.
The Children's Online Privacy Protection Act (COPPA)
The Children's Online Privacy Protection Act (COPPA) protects the online privacy and personal information of children under 13 years of age. In compliance with this act, BrainStorm does not promote online to children, and does not intentionally collect any personally identifiable information from children under 13.
Our Copyright Notice
The contents of this site are the property of BrainStorm and are subject to United States and worldwide laws and treaties restricting the copy, distribution, publishing and transmission of same. No portion of this site may be copied, distributed, published or transmitted without the express written consent of BrainStorm.
All of this website's content and supporting code are copyrighted by or licensed to BrainStorm and all rights are reserved. All content copies, either electronic or printed, are for personal use only. The content and supporting code contained herein may not be used in any other manner unless express written permission is obtained in advance.
Our Trademarks Policy
BrainStorm has attempted to supply trademark information about company names, products, and services mentioned on this website. The following list of trademarks was derived from various sources: