These Terms of Service ("Terms") constitute a legally binding agreement between Brainerce, Inc., a Delaware corporation ("Brainerce," "we," "us," or "our"), and the person or entity accessing or using the Brainerce platform, software, API, SDK, dashboard, or services ("Merchant," "you," or "your").

By creating an account, accessing the dashboard, calling or integrating the API, embedding the SDK in any storefront or application, or otherwise interacting with or using any part of the services provided by Brainerce (collectively, the "Services"), you acknowledge that you have read, understood, and expressly agree to be bound by these Terms and our Privacy Policy, which is fully incorporated herein by reference.

If you are entering into these Terms on behalf of a company, partnership, or other legal entity, you represent and warrant that you have the full legal authority to bind that entity to these Terms. If you do not possess such authority, or if you do not agree to all the provisions of these Terms, you are strictly prohibited from accessing or using the Services, and you must cease all use immediately.

3.1 Platform Overview

Brainerce provides a headless commerce infrastructure layer and related services (the "Services"), which may include, but are not limited to, the following components:

• Commerce Engine: Product catalog, variants, inventory management, pricing, and discount rules.
• Checkout and Payments: Hosted or embedded checkout, cart management, coupon and promotion engines, upsell/cross-sell features, and integrations with third-party payment gateways and processors.
• Order Management: Order creation, fulfillment tracking, returns, and refund management tools.
• Customer Management: Customer profiles, purchase history, segmentation, and communication tools.
• Sales Channels: Multi-channel publishing and custom storefront support via our SDK and APIs.
• AI Agent: An AI-powered assistant capable of executing commerce tasks on behalf of the Merchant, subject to Merchant configuration and authorization, and governed by the AI usage terms in Section 11.
• App Marketplace: A catalog of third-party or Brainerce-developed integrations, applications, and extensions.
• WooCommerce Connector: Data migration tools for importing product, customer, and order data from third-party platforms.
• Developer Tools: REST and/or GraphQL APIs, SDKs, webhooks, MCP server, and CLI migration tools.

3.2 Service Modifications

We reserve the right, at our sole discretion, to modify, enhance, update, deprecate, or discontinue any features, functionalities, or components of the Services at any time. For material modifications that result in a significant degradation or removal of core functionality, Brainerce will use commercially reasonable efforts to provide Merchant with at least thirty (30) days' prior written notice. Notwithstanding the foregoing, urgent modifications required for platform security, stability, intellectual property protection, or legal compliance may be implemented immediately without prior notice. Brainerce shall not be liable to Merchant or any third party for any modification, price change, suspension, or discontinuation of the Services.

3.3 Beta Features

From time to time, Brainerce may make available to Merchant certain features or services labeled as "Beta," "Preview," "Early Access," or similar designations ("Beta Features"). Merchant acknowledges and agrees that Beta Features are provided strictly on an "AS IS" and "AS AVAILABLE" basis, without warranties of any kind, express or implied. Brainerce reserves the right to modify, suspend, or discontinue any Beta Features at any time and without notice. Merchant uses Beta Features at its own sole risk and discretion, and should not rely upon Beta Features for production-critical workflows or commercial operations.

4.1 Eligibility

You must be at least 18 years old and legally capable of entering into binding contracts in your jurisdiction. By registering for an Account, you represent and warrant that you meet these requirements and that all registration information you submit is truthful and accurate.

4.2 Account Accuracy

You agree to provide accurate, current, and complete information during the registration process and to maintain and promptly update such information to keep it accurate, current, and complete. Providing false, inaccurate, or misleading information constitutes a material breach of these Terms and shall be grounds for immediate termination of your Account and access to the Services.

4.3 Credentials and Security

You are solely responsible for maintaining the strict confidentiality of your account credentials, passwords, API keys, webhooks, and access tokens (collectively, "Credentials"). You expressly agree to:

• Use strong, unique passwords and enable multi-factor authentication (MFA) where available.
• Safeguard all API keys and secrets, ensuring they are not exposed in client-side code or public repositories.
• Immediately notify Brainerce at [email protected] of any unauthorized use of your Credentials, suspected security breach, or data incident.
• Not share, sell, or transfer your Credentials to any unauthorized third party.

You are entirely responsible for any and all activities, API calls, charges, or liabilities that occur under your Account or through the use of your Credentials, whether or not such activity was authorized by you, up until the time you have notified Brainerce of a breach and Brainerce has had a reasonable commercial opportunity to suspend or secure the affected Account or Credentials. Brainerce reserves the right to suspend your access to the Services immediately if we suspect any unauthorized access or compromise of your Account.

4.4 Sub-Users and Staff

You may grant access to your Account to your employees, independent contractors, or authorized personnel ("Authorized Users"). You are fully responsible and liable for ensuring that all Authorized Users comply with these Terms. Any act or omission by an Authorized User that would constitute a breach of these Terms if committed by you will be deemed a breach by you. You are solely responsible for promptly revoking an Authorized User's access to the Services upon the termination of their employment or engagement with your business.

5.1 Subscription Plans

Access to the Services requires a valid, paid Subscription. Plan details, including features, usage capacities, rate limits, and pricing, are set forth at brainerce.com/pricing or within a separate executed order confirmation. In the event of any conflict between these Terms and an authorized order confirmation, the order confirmation shall control.

5.2 Billing Cycle and Auto-Renewal

Subscription fees are billed in advance on a recurring monthly or annual basis (as selected by Merchant during registration). Unless you cancel your Subscription before the end of the then-current billing cycle, your Subscription will automatically renew for successive periods of equal duration at Brainerce's then-current standard rates. Brainerce will send a renewal reminder via email at least fifteen (15) days prior to the renewal of any annual Subscription.

5.3 Payment Method and Failed Payments

You hereby authorize Brainerce (and our third-party billing processor, Stripe) to charge your designated credit card or payment method for all fees due. If a recurring payment fails, we will notify you, and you will have a ten (10) day grace period to update your payment information and settle the balance. If any due amount remains unpaid after ten (10) days, Brainerce reserves the absolute right to immediately suspend your access to the Services, including disabling your API keys, SDK functionality, and Account access, without any liability for disruptions to your business or Storefront.

5.4 Late Interest and Collection Costs

Any fees not paid when due shall bear interest at the rate of 1.5% per month, or the maximum rate permitted by law, whichever is lower, calculated from the date due until paid in full. Merchant shall reimburse Brainerce for all reasonable costs and legal fees incurred by Brainerce in collecting any overdue amounts.

5.5 Price Changes

We reserve the right to modify our Subscription fees and transaction fee rates upon at least thirty (30) days' written notice before the start of the next billing cycle. Your continued use of the Services after the price change takes effect constitutes your express acceptance of the new fees.

5.6 Taxes

All fees charged by Brainerce are exclusive of applicable taxes, levies, or duties. Merchant is solely responsible for all applicable sales, use, excise, value-added (VAT), goods and services (GST), Israeli VAT, withholding, or other taxes applicable to your use of the Services. Where Brainerce is legally required to collect and remit such taxes, they will be added to your invoice and charged to your payment method.

5.7 Billing Disputes and Chargebacks

If you believe an invoice contains an error, you must notify us in writing at [email protected] within thirty (30) days of the invoice date. If no notice is received within thirty (30) days, the invoice shall be deemed correct and undisputed. Initiating an unauthorized chargeback or payment dispute with your bank or credit card company without first contacting Brainerce constitutes a material breach of these Terms, and your Account may be terminated immediately. Merchant will be liable for any administrative and legal fees incurred by Brainerce in resolving fraudulent chargebacks.

5.8 Refunds

Except as explicitly required by applicable law, all fees paid to Brainerce are strictly non-refundable and non-cancelable. If Merchant terminates these Terms for cause in strict compliance with Section 16.3, Merchant may be eligible to receive a prorated refund of any prepaid, unused Subscription fees covering the remainder of the current billing cycle.

5.9 Transaction Fees

Where applicable under your selected plan or order confirmation, Brainerce charges transaction fees on orders processed through the platform. Such fees are calculated as a percentage of the gross order value (including taxes and shipping costs, if applicable) processed via our API, SDK, or checkout system. Transaction fees will be billed monthly in arrears or aggregated with your next subscription cycle, as determined by Brainerce.

6.1 License to Use the Platform

Subject to your compliance with these Terms and payment of applicable fees, Brainerce grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Services during your Subscription term, solely for your internal business purposes in connection with operating your Storefront(s) and managing your commerce operations.

6.2 License Restrictions

You agree not to, and will ensure your Authorized Users do not:

• Reverse-engineer, decompile, disassemble, or attempt to derive the source code of any part of the Services (except as permitted by applicable law).
• Resell, sublicense, or provide access to the Services to third parties (including white-labeling) without our express written consent.
• Access the Services to build a competing product or service, or benchmark the Services for competitive intelligence purposes.
• Circumvent, disable, or interfere with any security or access control features of the Services.
• Use automated tools to scrape, crawl, or extract data from the Services beyond normal API usage within your plan limits, or exceed rate limits established by Brainerce.
• Use the Services to store, transmit, or distribute malware, viruses, or any code designed to harm systems or data.
• Impersonate another person or entity, or misrepresent your affiliation with any person or entity.
• Attempt to gain unauthorized access to any part of the Services, including other Merchants' data.
• Use the Services in any way that violates applicable laws or regulations.

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6.3 Customer Responsibility

You shall be fully and unconditionally responsible and liable for all activities that occur under your account, including all acts or omissions of your Authorized Users. Any breach of these Terms by an Authorized User shall be deemed a material breach by you.

6.4 Feedback

If you or any of your Authorized Users provide Brainerce with any suggestions, enhancement requests, recommendations, or other feedback relating to the Services ("Feedback"), you hereby grant Brainerce a worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use, disclose, and exploit such Feedback for any purpose without restriction, credit, or obligation.

6.5 Suspension of Services

Brainerce reserves the right to immediately suspend your or any Authorized User's access to the Services, in whole or in part, without prior notice and without liability, if Brainerce reasonably suspects or determines that the Services are being used in violation of this Section 6, or if necessary to prevent imminent harm to the security, integrity, or availability of the Services, Brainerce's systems, or other customers' data.

7.1 SDK Grant and Ownership

Subject to your compliance with these Terms, Brainerce grants you a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license to embed and distribute the Brainerce SDK within your Storefront(s) solely for the purpose of connecting to and utilizing the Services during your Subscription term. Brainerce retains all right, title, and interest, including all intellectual property rights, in and to the SDK.

7.2 SDK Restrictions

Except as expressly permitted under this Section 7, you agree not to, and shall ensure your Authorized Users do not:

• (a) Modify, alter, adapt, tamper with, or create derivative works of the SDK, in whole or in part;
• (b) Reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying algorithms of the SDK;
• (c) Separate any components of the SDK or use them independently from the Storefront;
• (d) Use the SDK to access the Services on behalf of any third party, or allow any third party to utilize the SDK, without Brainerce's prior written consent;
• (e) Circumvent, disable, or interfere with any security, authentication, or rate-limiting features embedded within the SDK; or
• (f) Use the SDK in any manner that violates applicable laws or these Terms.

7.3 SDK Updates and Backward Compatibility

Brainerce may, from time to time, release SDK updates, which may include security patches, bug fixes, or functionality upgrades. You are solely responsible for promptly implementing such updates and keeping your embedded SDK current. Brainerce will use commercially reasonable efforts to maintain backward compatibility for a period of six (6) months following a formal written announcement of a breaking change. Brainerce shall not be liable for any service interruptions, security vulnerabilities, or performance degradation resulting from your failure to update the SDK to the latest recommended version.

8.1 Third-Party Applications

The Brainerce App Marketplace contains software applications developed both by Brainerce and by independent third-party developers ("Third-Party Apps"). Your purchase, installation, and use of Third-Party Apps are strictly governed by the separate terms and conditions and privacy policies between you and the respective third-party developer. Brainerce does not endorse, warrant, or guarantee the functionality, performance, security, availability, or legal compliance of any Third-Party Apps. Your use of Third-Party Apps is entirely at your own risk and discretion.

8.2 App Data Access and Privacy

When you install an App, you expressly authorize Brainerce to grant that App the data access permissions requested during installation, which may include accessing, modifying, or deleting your Merchant Data or customer data. Brainerce has no control over, and is not responsible or liable for, how third-party developers collect, store, use, or disclose your data. It is your sole responsibility to carefully review all App permissions and the developer's privacy policies before installation.

8.3 Modification or Removal of Apps

Brainerce reserves the right, in its sole discretion and without liability, to suspend, disable, or permanently remove any App from the App Marketplace at any time for security, technical, compliance, or policy violations. While Brainerce will use commercially reasonable efforts to provide advance notice of an App's removal, Brainerce reserves the right to remove any App immediately and without prior notice if it suspects a security threat, fraud, or legal violation. Brainerce shall not be liable for any data loss, business interruption, or financial loss resulting from the removal or unavailability of any App.

9.1 Ownership

You retain all ownership, right, title, and intellectual property rights in and to your Merchant Data. Brainerce claims no ownership interest of any kind in your Merchant Data.

9.2 License to Process and Use Data

You hereby grant Brainerce a limited, non-exclusive, worldwide, royalty-free, fully paid-up license to process, store, host, transmit, and display Merchant Data solely to: (a) provide, maintain, and improve the Services; (b) prevent or address technical or security issues; (c) comply with our legal and regulatory obligations; and (d) as further described in our Privacy Policy and Data Processing Agreement (DPA).

9.3 Aggregated and Anonymous Data

Notwithstanding anything to the contrary herein, you agree that Brainerce may monitor, collect, analyze, and use statistical, compiled, anonymized, and aggregated data derived from your Merchant Data and use of the Services ("Aggregated Data") for operational analytics, machine learning, AI model training, benchmarking, product development, and marketing purposes. Brainerce owns all rights, title, and interest in such Aggregated Data, provided that it is completely anonymized and does not identify you or any individual End-Customer.

9.4 Data Processing (GDPR/Privacy)

To the extent Merchant Data includes personal data or personally identifiable information (PII) of End-Customers, the parties agree that Brainerce processes such data as a data processor under your explicit instructions pursuant to our Data Processing Agreement. You are and shall remain the data controller and are solely responsible for ensuring you have a valid legal basis to collect, process, and share End-Customer data with Brainerce under applicable privacy laws (including but not limited to GDPR, CCPA, and local privacy regulations).

9.5 Accuracy, Backup, and Liability

You are solely responsible for the accuracy, quality, integrity, legality, and appropriateness of all Merchant Data. While Brainerce performs industry-standard regular backups, Brainerce shall not be liable for any unauthorized access, alteration, corruption, erasure, or loss of Merchant Data. You are strictly responsible for maintaining your own independent backup copies of all critical business data.

9.6 Data Portability, Export, and Deletion

You may export your Merchant Data (including products, orders, customers, and store settings) at any time while your account is active and in good standing, utilizing the self-service export tools provided within the dashboard or the API. Any custom data extraction requests requiring manual engineering intervention may be subject to additional fees. Upon account termination, Brainerce will retain your Merchant Data for a maximum period of thirty (30) days to allow manual export, after which Brainerce reserves the right to permanently delete all your data without further liability or notice.

10.1 Brainerce Ownership and IP Rights

Brainerce retains exclusive ownership of all right, title, and interest, including all worldwide intellectual property rights, in and to the Services, the platform software, source code, underlying architecture, algorithms, AI models (including any configurations, weights, or optimizations thereof), user interfaces, documentation, trade secrets, trademarks, service marks, logos, and all derivative works, improvements, or modifications of any of the foregoing. Nothing in these Terms shall be construed as granting, transferring, or assigning any intellectual property rights or ownership interest to you or any third party. All rights not expressly granted to you herein are strictly reserved by Brainerce.

10.2 Feedback Implementation

Any suggestions, enhancement requests, recommendations, or other feedback provided by you or your Authorized Users regarding the Services shall be governed exclusively by Section 6.4 (Feedback) of these Terms. Brainerce is under no obligation to implement, maintain, or act upon any Feedback provided.

10.3 Publicity and Marketing Rights

You hereby grant Brainerce a non-exclusive, worldwide, royalty-free, fully paid-up license to use your business name, trade name, trademarks, and logos on Brainerce's website, customer lists, investor presentations, and marketing materials solely for the purpose of identifying you as a reference customer. You may revoke this right at any time by sending a written notice to [email protected]. Upon receipt of such revocation, Brainerce will cease any new use of your trademarks and will remove them from its website within a commercially reasonable timeframe, provided that Brainerce shall not be required to recall or destroy any physical marketing materials already distributed or produced.

10.4 Platform Communications to Merchants

Brainerce distinguishes three categories of email it may send to you as an account holder. (a) Service Communications: incident and outage notices, security advisories, billing and account notices, and breaking changes to the SDK or APIs that require action on your part. These are sent for the duration of your account because they are necessary to the provision of the Services. (b) Product Communications: notices describing new or changed functionality within the Services you already subscribe to, containing no offer, price, or solicitation to purchase. (c) Marketing Communications: promotional offers, discounts, and solicitations to purchase additional or upgraded products or services.

By registering an account you agree that Brainerce may send you Service Communications, Product Communications and Marketing Communications using the contact details associated with your account. Marketing Communications are sent to you in your capacity as an existing customer and concern the Services you already subscribe to, or additional or upgraded products and services of the same kind. You may opt out of Product Communications at any time without affecting your receipt of Service Communications, and you may opt out of Marketing Communications at any time without affecting your receipt of Service Communications or Product Communications; an opt-out takes effect on every subsequent Marketing Communication. Every message in categories (b) and (c) contains a one-click unsubscribe mechanism, and requests may also be sent to [email protected]. Brainerce will not sell, rent, or otherwise disclose your contact details to any third party for that party's own marketing purposes.

11.1 Nature and Disclaimers of AI Features

The Brainerce AI Agent and other AI-powered capabilities (collectively, "AI Features") utilize third-party large language models and generative artificial intelligence to assist Merchants with commercial operations, including but not limited to product management, pricing, discount optimization, and customer communications. You acknowledge and agree that AI Feature outputs are generated probabilistically, are inherently experimental, and may contain errors, inconsistencies, or inaccuracies ("Hallucinations"). All AI Features and their outputs are provided on an "AS IS" and "AS AVAILABLE" basis, without warranties of any kind.

11.2 Human Oversight and Merchant Responsibility

Merchant retains sole, ultimate, and absolute responsibility for reviewing, validating, and approving any recommendations, content, configurations, or actions suggested or generated by the AI Agent before execution. For any automated actions or those flagged as requiring authorization, Merchant must explicitly verify them through the interface. Brainerce shall have no liability whatsoever for any direct or indirect consequences, financial losses, loss of revenue, inventory errors, or pricing malfunctions arising from AI-generated outputs or actions authorized by the Merchant.

11.3 No Professional or Legal Advice

You shall not rely on any AI Feature outputs for legal, financial, accounting, compliance, medical, or other professional advice. The AI Features are automation aids and do not replace independent, qualified human professional judgment.

11.4 AI Sub-processors and Training Usage

The AI Features operate through integration with third-party AI infrastructure providers ("AI Sub-processors"). Merchant acknowledges that any data submitted to the AI Features will be processed in accordance with such third parties' terms. Brainerce shall not be liable for any service degradation, security incidents, or updates imposed by these third-party AI providers.

11.5 AI Usage Limits and Fair Use

Your use of AI Features is subject to transaction limits, rate limits, and fair use policies established by Brainerce. Brainerce reserves the right, in its sole discretion and without liability, to throttle, limit, or suspend your access to AI Features if your usage is deemed excessive, abusive, or threatens system stability.

11.6 Automated Decision-Making and Legal Compliance

Where AI Features are deployed by the Merchant to make decisions carrying legal or significant effects on End-Customers (e.g., automated profiling, dynamic personalized pricing, or promotional eligibility), Merchant is solely responsible for: (a) providing all necessary legally mandated disclosures and privacy notices to End-Customers; (b) maintaining human-in-the-loop mechanisms for End-Customers to contest such decisions; and (c) fully complying with all applicable global regulations governing automated decision-making (including but not limited to the EU AI Act, GDPR, and local consumer protection laws).

12.1 Payment Provider Relationships and Fees

Brainerce integrates with independent, third-party payment service providers, gateways, and acquirers, including but not limited to PayPal, Cardcom, and Grow (each a "Payment Provider"). When you accept, process, or manage payments through the Platform, you enter into a direct contractual relationship with the applicable Payment Provider and are strictly subject to their respective terms of service, privacy policies, and fee schedules. Brainerce does not collect, hold, clear, or possess your transaction funds at any point. You acknowledge that Payment Providers may alter their transaction fees, and Brainerce shall not be responsible for any such changes.

12.2 Merchant Compliance and Security Indemnity

You are solely, exclusively, and fully responsible for:

• (a) Complying with all applicable Payment Provider terms, rules, and acceptable use policies;
• (b) Maintaining continuous compliance with the Payment Card Industry Data Security Standard (PCI DSS) and all applicable data security laws relevant to your integration;
• (c) Obtaining and maintaining all necessary business licenses, tax registrations, and legal permits required to sell your products and collect payments in all relevant jurisdictions; and
• (d) Ensuring that you do not process prohibited or fraudulent transactions. You agree to fully indemnify and hold Brainerce harmless from any fines, penalties, losses, or legal expenses resulting from your breach of PCI DSS standards or fraud occurring on your Storefront.

12.3 Chargebacks, Disputes, and Fraud

All chargebacks, payment disputes, reversals, and fraudulent transactions are strictly and exclusively between you, your End-Customers, and the applicable Payment Provider. While Brainerce may, at its sole discretion, provide transaction data or logs to assist you in responding to disputes, Brainerce assumes no liability, financial or otherwise, for the outcome of any chargebacks or disputes. Excessive chargeback or fraud rates on your account may result in the immediate suspension or termination of your integration with Payment Providers or your access to the Services.

12.4 Disclaimer of Liability for Funds, Delays, and Reserves

Payment Providers retain absolute control over transaction processing and may impose payout delays, rolling reserves, account freezes, or spending holds based on their risk assessments or compliance policies. Brainerce shall have no liability whatsoever for, and you hereby release Brainerce from, any business interruption, financial loss, loss of revenue, or inability to access funds arising out of or relating to any decisions, actions, technical failures, errors, or insolvencies of any third-party Payment Providers.

13.1 Prohibited Products and Services

You are strictly prohibited from using the Services to display, sell, promote, or distribute any of the following categories of products, services, or content, as determined in Brainerce's sole discretion:

• (a) Illegal products, services, or activities in your jurisdiction or the jurisdiction of your End-Customers;
• (b) Products or content that infringe upon third-party intellectual property rights, including copyrights, patents, trademarks, or trade secrets;
• (c) Controlled substances, prescription medications, unapproved supplements, or regulated items without appropriate valid licenses;
• (d) Weapons, firearms, ammunition, or explosives;
• (e) Adult content, pornographic material, escort services, or highly offensive, hateful, or discriminatory material;
• (f) Counterfeit, stolen, fraudulent, or intentionally misleading goods or services;
• (g) Gambling, lotteries, or online betting services; or
• (h) Any products or services that violate our Payment Providers' acceptable use policies.

13.2 Prohibited Conduct

You agree not to use the Services to, and shall ensure your Authorized Users do not:

• (a) Engage in, facilitate, or promote scamming, phishing, consumer deception, or fraudulent business practices;
• (b) Send unsolicited commercial communications, spam, or engage in malicious marketing practices;
• (c) Circumvent, disable, or tamper with any security, access control, or rate-limiting mechanisms of the Platform;
• (d) Harvest, scrape, or unauthorizedly collect data belonging to other Merchants or their End-Customers;
• (e) Operate multi-level marketing (MLM) schemes, pyramid schemes, or high-yield investment programs; or
• (f) Conduct money laundering, terrorism financing, or any other financial crimes.

13.3 Brainerce's Right to Monitor and Enforce

Brainerce reserves the right, but assumes no obligation, to monitor and review your Storefront, Merchant Data, and products for compliance with this Section 13. Brainerce shall have the absolute right to immediately remove any prohibited content, suspend your access to the Services, or terminate your account without prior notice and without liability, if Brainerce determines or reasonably suspects that you have violated any provision of this Section.

13.4 Compliance with Laws and End-Customer Disputes

You are solely and exclusively responsible for ensuring that your operation of the Storefront complies with all applicable regional, national, and international laws, including consumer protection laws, e-commerce regulations, distance selling rules, accessibility requirements, and advertising standards. Brainerce is not a party to any transaction between you and your End-Customers. You shall be solely liable for handling and resolving all consumer complaints, delivery failures, product defects, or refund disputes.

14.1 Definition of Confidential Information

"Confidential Information" means all confidential or proprietary information disclosed by one party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Notwithstanding the foregoing, Brainerce's Confidential Information shall automatically include, without limitation, the platform software, source code, underlying architecture, AI models, algorithms, security configurations, technical documentation, and pricing plans, regardless of whether marked as confidential. Merchant's Confidential Information shall include Merchant Data.

14.2 Protection and Permitted Disclosure

The Receiving Party agrees to protect the Disclosing Party's Confidential Information with the same degree of care it uses to protect its own confidential information of a similar nature (but no less than a reasonable standard of care). The Receiving Party shall not use the Confidential Information for any purpose outside the scope of these Terms and shall restrict access to Confidential Information solely to its employees, contractors, advisors, and legal or financial counsel who have a strict "need-to-know" such information for purposes of performing under these Terms, provided that such individuals are legally bound by confidentiality obligations no less restrictive than those herein.

14.3 Exceptions

Confidentiality obligations do not apply to any information that: (a) is or becomes publicly known without breach of any obligation owed to the Disclosing Party; (b) was rightfully known to the Receiving Party prior to its disclosure by the Disclosing Party; (c) is independently developed by the Receiving Party without reference to or reliance upon the Disclosing Party's Confidential Information; or (d) must be disclosed pursuant to a law, regulation, or valid court order, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement (where legally permitted) to allow the Disclosing Party to seek a protective order.

14.4 Injunctive Relief

The Receiving Party acknowledges that a breach or threatened breach of its obligations under this Section 14 may cause irreparable harm to the Disclosing Party for which monetary damages alone would be an inadequate remedy. Accordingly, in the event of any such breach or threatened breach, the Disclosing Party shall be entitled to seek immediate equitable relief, including temporary restraining orders and preliminary or permanent injunctions, from any court of competent jurisdiction, without the necessity of posting a bond or proving actual monetary damages.

15.1 Brainerce Limited Warranty

Brainerce warrants that, during the applicable Subscription term: (a) the Services will perform materially in accordance with the official documentation provided by Brainerce; and (b) Brainerce will implement and maintain industry-standard administrative, physical, and technical safeguards designed to protect the security and integrity of Merchant Data.

15.2 Exclusive Remedy

In the event of a breach of the limited warranty specified in Section 15.1, your sole and exclusive remedy, and Brainerce's entire and absolute liability, shall be for Brainerce to use commercially reasonable efforts to correct or cure the material non-conformity within a reasonable timeframe. If Brainerce is unable to correct such breach after commercially reasonable efforts, either party may terminate the applicable Subscription, and Brainerce will provide a pro-rata refund of any prepaid, unused fees covering the remainder of the Subscription term following the date of termination.

15.3 Disclaimer of All Other Warranties

EXCEPT AS EXPRESSLY STATED IN SECTION 15.1, THE SERVICES, PLATFORM, SDK, AI FEATURES, AND ALL RELATED COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRAINERCE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

WITHOUT LIMITING THE FOREGOING, BRAINERCE DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE OF VIRUSES, MALWARE, OR OTHER HARMFUL COMPONENTS, OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED. YOU ACKNOWLEDGE THAT THE SERVICES ARE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, CLOUD INFRASTRUCTURE, AND ELECTRONIC COMMUNICATIONS, AND BRAINERCE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

16.1 Exclusion of Consequential Damages

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST REVENUE, LOST DATA, CORRUPTION OF DATA, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE), AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

16.2 Cap on Liability

BRAINERCE'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, THE PLATFORM, THE SDK, THE AI FEATURES, AND THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY MERCHANT TO BRAINERCE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

16.3 Exceptions to the Limitations

The limitations and exclusions in Sections 16.1 and 16.2 do not apply to:

• (a) A party's gross negligence, willful misconduct, or fraud;
• (b) Merchant's payment obligations to Brainerce under these Terms;
• (c) A party's express indemnification obligations under these Terms; or
• (d) Any liability that cannot be limited or excluded under applicable law.

For the avoidance of doubt, any liability arising from a data security incident, unauthorized access, or loss/corruption of Merchant Data shall be subject to the monetary cap set forth in Section 16.2.

16.4 Essential Basis of the Bargain

The parties acknowledge and agree that the limitations of liability in this Section 16 reflect a reasonable and negotiated allocation of risk, and that Brainerce would not enter into these Terms or provide the Services without these limitations.

17.1 Merchant Indemnification

You shall defend, indemnify, and hold harmless Brainerce, its affiliates, and their respective officers, directors, employees, and agents from and against any and all third-party claims, demands, damages, losses, liabilities, penalties, and expenses (including reasonable attorneys' fees and court costs) arising out of or relating to: (a) your or your Authorized Users' breach of these Terms or Acceptable Use Policies; (b) your Merchant Data (including any claims by End-Customers, individuals, or regulatory authorities regarding data privacy or data protection practices); (c) your Storefront content, products, or services sold through the Platform; (d) your violation of any applicable law or regulation; or (e) any transaction or dispute between you and your End-Customers.

17.2 Brainerce IP Indemnification

Brainerce shall defend, indemnify, and hold harmless Merchant from and against any third-party claims or legal actions alleging that the core Services or Platform, as provided by Brainerce and used in strict accordance with these Terms, infringe a valid, issued third-party copyright, patent, or trademark (an "IP Claim").

Notwithstanding the foregoing, Brainerce shall have no defense or indemnification obligation for IP Claims arising from or related to: (a) Merchant's or its users' modifications to the Services; (b) combination of the Services with software, hardware, or data not provided or explicitly authorized by Brainerce; (c) Merchant's failure to implement updates or security patches provided by Brainerce; (d) use of the Services in a beta, trial, or non-paid environment; or (e) any outputs, content, or materials generated by the AI Agent or AI Features, or the use of Third-Party Apps.

17.3 Infringement Remedies

If an IP Claim is made or, in Brainerce's reasonable opinion, is likely to be made, Brainerce may, at its sole discretion and expense: (a) procure the right for Merchant to continue using the affected Services; (b) replace or modify the affected Services so they become non-infringing while remaining materially functional; or (c) if options (a) and (b) are not commercially practicable, terminate the applicable Subscription and provide a pro-rata refund of any prepaid, unused fees. This Section 17.3 states Brainerce's sole and exclusive liability and Merchant's sole remedy for any intellectual property infringement claims.

17.4 Indemnification Procedure

The party seeking indemnification ("Indemnified Party") must: (a) promptly notify the indemnifying party ("Indemnifying Party") in writing of the claim, provided that any delay in notification shall only relieve the Indemnifying Party of its obligations to the extent such delay materially prejudices the defense; (b) grant the Indemnifying Party sole and absolute control over the defense and settlement of the claim; and (c) provide all reasonable assistance and cooperation at the Indemnifying Party's expense. The Indemnifying Party shall not settle any claim in a manner that admits liability or imposes any financial or behavioral obligation on the Indemnified Party without the Indemnified Party's prior written consent.

18.1 Term

These Terms commence on the date you first access or use the Services and shall continue until your Subscription term expires, is cancelled, or is otherwise terminated in accordance with these Terms.

18.2 Cancellation by Merchant

You may cancel your Subscription at any time through your account control panel or settings interface. Cancellation will take effect at the expiration of your then-current billing cycle. You will retain access to and use of the Services through the end of your prepaid billing period, and no refunds or credits shall be issued for partial months or unused time.

18.3 Termination for Cause by Merchant

If Brainerce materially breaches these Terms and fails to cure such breach within thirty (30) days following receipt of detailed written notice from you, you may terminate the applicable Subscription immediately. In the event of such termination for cause, Brainerce will provide a pro-rata refund of any prepaid, unused fees covering the remainder of the Subscription term.

18.4 Suspension or Termination by Brainerce

Brainerce reserves the right, in its sole discretion and without prior notice or liability, to immediately suspend or terminate your access to the Services, in whole or in part, if:

• (a) You or your Authorized Users breach Section 6.2 (License Restrictions), Section 7.2 (SDK Restrictions), Section 13 (Acceptable Use), or fail to meet your payment obligations;
• (b) Brainerce is required to do so by applicable law, regulation, or a governmental/regulatory authority; or
• (c) Brainerce determines that your continued use of the Services creates a legal, financial, security, operational, or reputational risk to Brainerce, its infrastructure, or other merchants.

For any other non-material compliance issues, Brainerce may, at its option, provide you with written notice and a reasonable period (not to exceed fourteen (14) days) to cure the issue prior to taking termination action.

18.5 Effect of Termination

Upon expiration or termination of these Terms for any reason:

• (a) All licenses and rights granted to you under these Terms shall immediately terminate;
• (b) You and your Authorized Users must immediately cease all access to and use of the Services, Platform, and SDK;
• (c) Brainerce will retain your Merchant Data for a maximum of thirty (30) days for export purposes as outlined in Section 9.6, after which it will be permanently deleted;
• (d) If termination is due to your breach or non-payment, all fees for the entire remainder of your then-current Subscription term shall become immediately due and payable; and
• (e) Any provisions that by their nature are intended to survive termination shall survive, including without limitation Sections 6.4 (Feedback), 9 (Merchant Data), 10 (Intellectual Property), 14 (Confidentiality), 15 (Warranties and Disclaimers), 16 (Limitation of Liability), 17 (Indemnification), and 20 (General Provisions).

19.1 Uptime Target and Exclusions

Brainerce shall use commercially reasonable efforts to maintain a 99.9% monthly uptime availability target for the production API and merchant dashboard. The calculation of monthly uptime shall strictly exclude any downtime resulting from: (a) scheduled maintenance windows communicated in advance; (b) emergency maintenance required to address critical security vulnerabilities; (c) updates, failures, or service degradations caused by third-party infrastructure providers (e.g., cloud hosting services or Payment Providers); (d) force majeure events or internet routing disruptions outside of Brainerce's direct control; or (e) any malfunctions caused by the Merchant's custom configurations, embedded SDK misuse, or third-party applications.

19.2 Service Credits and Exclusive Remedy

In the event that Brainerce fails to meet the specified uptime target in any given calendar month, you may be eligible to receive service credits in accordance with the terms, percentages, and procedures outlined in our comprehensive Service Level Agreement (SLA), available at brainerce.com/sla.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE ISSUANCE OF SERVICE CREDITS AS DESCRIBED IN THE SLA SHALL CONSTITUTE YOUR SOLE AND EXCLUSIVE REMEDY, AND BRAINERCE'S ENTIRE AND ABSOLUTE LIABILITY, FOR ANY DOWNTIME, SYSTEM UNAVAILABILITY, PERFORMANCE DEGRADATION, OR SERVICE INTERRUPTIONS OF ANY KIND.

19.3 Claim Procedure

To be eligible for a service credit, Merchant must submit a formal written claim to Brainerce's support team within thirty (30) days following the end of the calendar month in which the uptime target failure allegedly occurred. Failure to submit a timely claim within this period shall constitute an irrevocable waiver of your right to receive any service credits for that period.

20.1 Governing Law

These Terms, and all claims, disputes, controversies, or causes of action arising out of or relating to the Services, the Platform, or these Terms, shall be governed by, interpreted, and enforced strictly in accordance with the internal laws of the State of Delaware, United States, without regard to its conflict of laws principles. The parties explicitly agree that the United Nations Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded and shall not apply.

20.2 Mandatory Informal Dispute Resolution

Prior to initiating any formal legal actions or litigation, the parties agree to attempt to resolve the dispute informally. The aggrieved party must send a detailed written notice of the dispute to the other party (if to Brainerce, via [email protected]). Following receipt of such notice, the parties shall engage in good-faith executive consultations and negotiations for a minimum period of thirty (30) calendar days. Neither party may initiate court proceedings until this 30-day informal resolution window has completely lapsed.

20.3 Exclusive Jurisdiction and Venue (Tel Aviv, Israel)

SUBJECT TO THE MANDATORY INFORMAL DISPUTE RESOLUTION IN SECTION 20.2, THE PARTIES HEREBY IRREVOCABLY AGREE THAT THE COMPETENT COURTS LOCATED IN THE DISTRICT OF TEL AVIV-JAFFA, ISRAEL, SHALL HAVE EXCLUSIVE JURISDICTION AND VENUE TO HEAR, SETTLE, AND RESOLVE ANY AND ALL DISPUTES, LITIGATION, ACTIONS, OR LEGAL PROCEEDINGS ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THESE TERMS OR THE SERVICES. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS AND EXPRESSLY WAIVES ANY OBJECTION BASED ON PROPER VENUE, INCONVENIENT FORUM (FORUM NON CONVENIENS), OR OUT-OF-STATE RESIDENCY.

20.4 Absolute Class Action Waiver

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALL CLAIMS AND DISPUTES MUST BE BROUGHT STRICTLY IN A PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, CLAIMANT, OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING BEFORE THE COMPETENT COURTS. MERCHANT EXPRESSLY COVENANT AND AGREES THAT CLAIMS OF MULTIPLE MERCHANTS CANNOT BE CONSOLIDATED, JOINED, OR CO-LITIGATED TOGETHER IN A SINGLE PROCEEDING AGAINST BRAINERCE.

20.5 Emergency Equitable Relief

Notwithstanding the exclusive jurisdiction set forth in Section 20.3, Brainerce reserves the right to seek immediate emergency injunctive relief, temporary restraining orders, or preliminary equitable remedies against Merchant in any court of competent jurisdiction globally where Merchant assets, database servers, or storefront infrastructure are physically located, in order to prevent irreparable harm, asset dissipation, or intellectual property misappropriation.

21.1 Entire Agreement

These Terms, together with the Privacy Policy, the Data Processing Agreement (DPA), and any applicable executed order confirmations or price plans, constitute the entire, exclusive agreement between the parties regarding the subject matter herein, and supersede all prior or contemporaneous agreements, advertisements, representations, and understandings, whether written or oral.

21.2 Amendments and Modifications

Brainerce reserves the right to update or modify these Terms at any time. For material changes, Brainerce will provide at least thirty (30) days' written notice (via email or dashboard notification) before the updated Terms take effect. Your continued access to or use of the Services after the effective date of such modification constitutes your binding acceptance of the updated Terms. Notwithstanding the foregoing, updates required to address compliance with applicable laws, regulatory mandates, or urgent security vulnerabilities may be implemented immediately without prior notice.

21.3 Severability

If any provision of these Terms is held by a court or arbitrator of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be modified by the court or arbitrator to the minimum extent necessary to make it valid and enforceable while achieving the original commercial intent of the parties. If modification is not possible, the provision shall be severed, and the remaining provisions of these Terms shall continue in full force and effect.

21.4 No Waiver

A party's failure or delay to enforce or exercise any provision, right, or remedy under these Terms shall not constitute a waiver of that or any future right to enforce such provision. All waivers must be executed explicitly in writing by an authorized representative.

21.5 Assignment and Successors

You may not assign, delegate, or transfer these Terms, or any of your rights or obligations hereunder, without Brainerce's prior written consent. Any attempted assignment without such consent shall be null and void. Brainerce may freely assign, transfer, or delegate these Terms, in whole or in part, without your consent, to an affiliate or in connection with a merger, corporate restructuring, acquisition, or sale of all or substantially all of its assets. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.

21.6 Force Majeure

Neither party shall be liable for delays or failures in performance resulting from causes beyond their reasonable control, including acts of God, war, acts of terrorism, civil unrest, natural disasters, epidemics, government actions, trade embargoes, regional internet outages, or major third-party utility failures. The affected party must provide prompt written notice and implement reasonable efforts to mitigate the impact. Notwithstanding the occurrence of a force majeure event, your obligation to make timely payments for accrued fees and ongoing Subscriptions under these Terms shall remain absolute and shall not be excused.

21.7 Relationship of the Parties

The parties are strictly independent contractors. Nothing in these Terms shall be construed to create a partnership, joint venture, franchise, employment, agency, or fiduciary relationship between the parties. Neither party has the authority to bind the other or incur obligations on the other's behalf.

21.8 Notices

All legal notices under these Terms must be delivered in writing. Brainerce will send notices to the primary email address associated with your merchant account. You must deliver legal notices to Brainerce via email at [email protected]. Notices shall be deemed effectively delivered and received on the next business day following electronic transmission.

21.9 Governing Language

These Terms were originally drafted in the English language. While translations may be provided for informational convenience, in the event of any discrepancy, ambiguity, or conflict between the English version and any translated version, the English version shall exclusively control and govern.

If you have any questions, concerns, or require legal correspondence regarding these Terms of Service or the Services, please contact Brainerce through the official channels below: