Brain Technologies, Inc.

[Natural AI Phone [ 1]] Terms of Service

Last Updated: [Date]

Please read these Terms of Service (the “Terms”) and our Privacy Policy located at [https://privacy.brain.ai/privacy-policy-en[ 2]] (“Privacy Policy”) carefully because they govern your use of the mobile phone operating system that utilizes artificial intelligence and machine learning technology and related functionality and services (the “Services”) offered by Brain Technologies, Inc. (“Brain”).

IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS AS AN INDIVIDUAL USER, AND NOT ON BEHALF A COMPANY OR LEGAL ENTITY, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND BRAIN THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 19 “DISPUTE RESOLUTION” BELOW. [ 3]

1.Agreement to Terms. By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services.

2.Privacy Policy. Please review our Privacy Policy, which also governs your use of the Services, for information on how we collect, use and share your information.

3.Changes to Terms or Services. We may update the Terms at any time, in our sole discretion. If we do so, we’ll let you know by notifying you through the Services or through other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion. We may add, remove, suspend or alter access to any functionality available through or on the Services at any time and make no guarantee as to the availability of specific functionality. The Services, or certain features or portions thereof, may be offered in limited territories, and we may use geo-filtering technology to restrict access outside of those territories.

4.Who May Use the Services?

You may use the Services only if you are 18 years or older [ 4], are capable of forming a binding contract with Brain, and are not barred from using the Services under applicable law.

5.Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at feedback@brain.ai[ 5]. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.

6.Services. At your direction, the Services may allow you to use artificial intelligence (“AI”) functionality and Inputs (defined below) to take action on your behalf, for example to place an order for goods or to purchase airline tickets, hotel stays, or rental cars (“Actions”).

(a)Third Party Terms. The purchase of all goods or services offered by third parties (“Third Party”) via this functionality of the Services are subject to separate terms and conditions made available by the applicable Third Party (“Third Party Terms”) including, without limitation, applicable refund policies. You will be completely responsible for all charges, fees, duties and taxes arising out of your purchase and use of any Third Party’s products and services.

(b)Authorization. By using the Services, you grant Brain the right, power, and authority to access and transmit your personal and financial information to any Third Parties as necessary to complete an Action on your behalf.

7.Payments. Brain may require payment of a fee by you for use of the Services (or certain portions thereof, including Actions that involve payment) and you agree to pay such fees (“Service Fees”).

(a)General. For each Action that requires payment (a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms and the applicable Third Party Terms. All fees and applicable taxes, if any, are payable in United States dollars.[ 6]

(b)Brain Fees. You also agree to pay Brain any Service Fees that Brain communicates to you in connection with an Action or Transaction. [ 7]

8.Refunds, Changes and Cancellations. You agree that, as between you and Brain, the performance of all Actions is final, non-changeable, non-refundable and non-transferable. You will not receive any credits or any other form of refund for cancelled or modified Actions unless otherwise permitted by Third Party Terms.

9.Content Ownership, Responsibility and Removal.

(a)Input and Output. The Services will generate information or results from Actions (collectively, “Output”) in response to all information, data, content and other materials, in any form or medium, that is provided, or otherwise made available through the Services, by or on behalf you (“Input”). As between you and Brain, to the extent permitted by applicable law and subject to Section 9(b), you own all Input and any Output generated in response to such Input. Notwithstanding the foregoing, Output does not include any information that is proprietary to applicable Third Parties.

(b)Brain’s Ownership. Brain does not claim any ownership rights in any Input and nothing in these Terms will be deemed to restrict any rights that you may have in and to your Input. Subject to the foregoing, Brain and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights.

(c)Rights in Input and Output Granted by You. By making any Input available through the Services you hereby grant to Brain a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your Input in connection with operating and providing the Services and Output to you and in connection with promoting or marketing the Services. Brain may develop or derive data or insights from: (i) any Input or Output; or (ii) your use of the Services, including without limitation, any usage data or trends specific to the Services, provided that, in each case, such data is de-identified of any “personal data” or “personal information” under applicable data protection laws (clauses (i) and (ii), collectively, “Service Information”).

(d)Your Responsibility for Input. You are solely responsible for all your Input. You represent and warrant that you own all your Input or you have all rights that are necessary to grant us the license rights in your Input under these Terms. You also represent and warrant that neither your Input, nor your use and provision of your Input to be made available through the Services, nor any use of your Input by Brain on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

10.Rights in Services Granted by Brain. Subject to your compliance with these Terms, Brain grants to you a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services on a mobile device that you own or control solely for your own personal non-commercial purposes. Brain reserves all rights in and to the Services not expressly granted to you under these Terms.

11.General Prohibitions and Brain’s Enforcement Rights. You agree not to do any of the following:

(a)Post, upload, publish, submit or transmit any Input that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;

(b)Copy, modify or create derivative works based, display, mirror or frame the Services or any individual element within the Services, Brain’s name, any Brain trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Brain’s express written consent;

(c)Attempt to probe, scan or test the vulnerability of any Brain system or network or breach any security or authentication measures;

(d)Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Brain or any of Brain’s providers or any other third party (including another user) to protect the Services;

(e)Attempt to access or search the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Brain or other generally available third-party web browsers;

(f)Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;

(g)Use the Services or Outputs, or any portion thereof in any manner not permitted by these Terms;

(h)Attempt to decipher, decompile, disassemble or reverse engineer any of the software or algorithms used to provide the Services;

(i)Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;

(j)Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;

(k)Impersonate or misrepresent your affiliation with any person or entity;

(l)Violate any applicable law or regulation; or

(m)Encourage or enable any other individual to do any of the foregoing.

12.DMCA/Copyright Policy. Brain respects copyright law and expects its users to do the same. It is Brain’s policy to discontinue access to Services to anyone who repeatedly infringes or are believed to be repeatedly infringing the rights of copyright holders. Please see Brain’s Copyright and IP Policy at www.brain.ai/dmca[ 8], for further information.

13.Links to Third Party Websites or Resources. The Services may contain links to third-party websites or resources, including Third Parties and Third Party Services. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources or your reliance on information gathered from those third-party resources.[ 9]

14.Termination. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may discontinue your use of the Services at any time. Upon any termination, discontinuation or cancellation of the Services or your Account, the following Sections will survive: 1, 2, 4, 9, 10, 11, 12, 15-20.

15.Warranty Disclaimers. THE SERVICES AND OUTPUTS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, BRAIN EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. BRAIN MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. BRAIN MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY OUTPUT.

DUE TO THE NON-DETERMINISTIC NATURE OF AI IN GENERAL, INCLUDING, LARGE LANGUAGE MODELS, AND THE PROBALISTIC NATURE OF MACHINE LEARNING (I) OUTPUTS MAY NOT BE UNIQUE AND THE SERVICES MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR ANOTHER USER OF THE SERVICES; (II) THE SERVICES MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OFFENSIVE OR OTHERWISE UNDESIRABLE; (III) THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT IS DEPENDENT UPON AND COMMENSURATE WITH THAT OF THE INPUT PROVIDED AND YOUR COMPLIANCE WITH THESE TERMS; (IV) THE ACTIONS AND TRANSACTIONS MAY YIELD INCORRECT RESULTS, BE INACCURATE AND CONTAIN ERRORS.

TO THE FULLEST EXTENT OF THE LAW AND NOTWITHSTANDING ANYTHING ELSE SET OUT HEREIN, BRAIN WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM INPUT, OUTPUT OR THEIR USE AND ACTIONS OR TRANSACTIONS AND THIRD PARTY PRODUCTS AND SERVICES.

YOUR USE OF THIRD PARTY PRODUCTS AND SERVICES IS AT YOUR OWN RISK AND BRAIN IS NOT RESPONSIBLE OR LIABLE FOR ANY DAMAGES OR HARM OF ANY KIND, INCLUDING PROPERTY DAMAGE OR PHYSICAL INJURY, RESULTING FROM YOUR USE THEREOF. YOU HEREBY AGREE THAT IN THE EVENT YOU HAVE A CLAIM ARISING FROM ANY THIRD PARTY PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, AS IT MAY RELATE TO AN ACTION OR TRASACTION PERFORMED THROUGH THE SERVICES, YOU WILL SEEK RELIEF FROM SUCH THIRD PARTY AND YOU HEREBY WAIVE ALL SUCH CLAIMS AGAINST US, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

16.Indemnity. You will indemnify and hold harmless Brain and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Outputs, (ii) your Inputs, or (iii) your violation of these Terms.

17.Limitation of Liability.

(a)Disclaimer of Damages. NEITHER BRAIN NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR OUTPUT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR OUTPUT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BRAIN OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

(b)Liability Cap. IN NO EVENT WILL BRAIN’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR OUTPUT EXCEED THE GREATER OF: (I) THE SERVICES FEES YOU HAVE PAID TO BRAIN IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR (II) FIVE HUNDRED DOLLARS ($500).

(c)Agreement. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BRAIN AND YOU.

18.Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 19 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Brain are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and Brain each waive any objection to jurisdiction and venue in such courts.

19.Dispute Resolution.

(a)Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Brain agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Brain are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.

(b)Exceptions. As limited exceptions to Section 19(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.

(c)Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.

Any arbitration hearings will take place in the county where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.

(d)Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration, we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.

(e)Injunctive and Declaratory Relief. Except as provided in Section 19(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.

(f)Class Action Waiver. YOU AND BRAIN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.

(g)Severability. With the exception of any of the provisions in Section 19(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.[ 10]

20.General Terms.

(a)Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Brain and you regarding the Services and Output, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Brain and you regarding the Services and Output. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Brain’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Brain may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

(b)Export Control. You represent and warrant that you are not named on or acting on behalf of any U.S. government denied-party list, and you agree to comply fully with all relevant export control and sanctions laws and regulations of the United States [ 11] (“Export Laws”) to ensure that neither the Services, any Outputs, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws.

(c)Notices. Any notices or other communications provided by Brain under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

(d)Waiver of Rights. Brain’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Brain. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

21.Contact Information. If you have any questions about these Terms or the Services, please contact Brain at support@brain.ai[ 12].