Partner Program

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Partner Program Agreement
November 4, 2020

By clicking on “I agree” (or a similar box or button) when you sign up to be a BrainFirst Partner or participate in any Partner Program activities, you agree to be bound by the following Partner Program Agreement (the “Agreement”). The Agreement is between you, as partner (“You” or “Partner”), andBrainFirst, LLC (BrainFirst). Each of Partner and BrainFirst may be referred to as a “Party”, and together as the “Parties”. You can review the current version of the Agreement at any time at reserves the right to update and change the Agreement by posting updates and changes here: If a significant change is made, we will provide reasonable notice by email. You are advised to check the Agreement from time to time for any updates or changes that may impact You. Any reference to the Agreement includes any and all terms and documents incorporated by reference.

By agreeing to participate in the Partner Program, You agree with and accept all of the terms and conditions contained in this Agreement, andBrainFirst's other policies, including but not limited to BrainFirst's Terms of Service and Privacy Policy. For the avoidance of doubt, all such BrainFirst Policies form part of this Agreement and are incorporated by reference.

1. Partner Responsibilities

1.1. Marketing Activities

  1. Partner will bear all costs and expenses related to Partner’s marketing or promotion of BrainFirst or Partner’s products or services associated with Partner’s participation in the Partner Program (collectively, “Partner Marketing Activities”) in any area, location, territory or jurisdiction, unless otherwise determined byBrainFirst in its sole discretion.
  2. In no event will Partner engage in any Partner Marketing Activities except as expressly set forth in this Agreement. In conducting all Partner Marketing Activities, Partner will comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming”.
  3. Without limiting the generality of Section 1.1.2, Partner will (i) not send any email regarding BrainFirst to any individual or entity that has not requested such information; (ii) always include Partner’s contact information and “unsubscribe” information in any email regarding BrainFirst; and (iii) not imply that such emails are being sent on behalf of BrainFirst.
  4. A Partner will not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to BrainFirst; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to BrainFirst; (iii) make any false, misleading or disparaging representations or statements with respect to BrainFirst; (iv) solicit any of BrainFirst's customers to leave BrainFirst; (v) copy, resemble or mirror the look and feel of BrainFirst's websites, BrainFirst's Trademarks (as defined below) or BrainFirst's services or otherwise misrepresent Partner’s affiliation with BrainFirst; or (vi) engage in any other practices that may adversely affect the credibility or reputation of BrainFirst, including but not limited to, sending email communications or using any website in any manner, or having any content on any website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to BrainFirst or the Partner’s services; (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal or objectionable activities; or (c) violates any intellectual property or other proprietary rights of any third party; or (d) otherwise violates BrainFirst's Policies.
  5. Anything Partner communicates in marketing or advertising any BrainFirst product, service or opportunity must be true and accurate. Claims that relate to any BrainFirst product, service or opportunity that are untrue or fraudulent are strictly prohibited. Partner may not claim that any government, person, or entity endorses or supports BrainFirst. Partner may not use the intellectual property of any other person or entity in advertising any BrainFirst product, service or opportunity.

1.2. Compliance with Laws

In addition to, and without limiting the provisions of this Agreement, Partner will perform its obligations under this Agreement in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations.

1.3 Unauthorized and Prohibited Activities

  1. Partner will not promote or advertise BrainFirst on coupon, deal, or discount sites or on GTP/Get Paid to Click or other incentivized sites, or display any offer code on a public-facing page or through the use of a “click to display” offer code.
  2. Partner will not use its links directly in any pay-per-click advertising;
  3. Partner will not purchase search engine or other pay-per-click keywords (such as Google AdWords), trademarks or domain names that use the BrainFirst Trademarks (as defined below) or any variations or misspellings thereof that may be deceptively or confusingly similar to the BrainFirst Trademarks.
  4. Partner will not create or participate in any third party networks or sub-affiliate networks without the express written permission of BrainFirst.
  5. Partner will not use or encourage any means of delivering fraudulent traffic, including but not limited to use of bots or toolbar traffic, cookie stuffing, or use of false or misleading links.
  6. Partner will not use direct linking to any page on any BrainFirst website, without prior written permission from BrainFirst.
  7. Partner will not mask its referral sites or use deceptive redirecting links.
  8. Partner will not disparage the products or services of any other person or entity, including without limitation the products or services of a competitor of BrainFirst, any other customer or partner of BrainFirst, or BrainFirst itself.

1.4. FTC Guidelines

  1. The Federal Trade Commission in the United States (“FTC”) has guidelines for governing endorsements and testimonials. These rules are aimed at increasing transparency between endorsers and consumers. As a member of the Partner Program with BrainFirst, Partner receives compensation for referrals made to BrainFirst. This may establish a “material connection” according to FTC rules, which creates an obligation for Partner to provide disclosure to consumers.
  2. Full compliance with these guidelines requires, among other things, that (a) Partner clearly and conspicuously disclose that Partner is being compensated for referring customers to BrainFirst; and (b) Partner is not engaged in misleading or deceptive advertising. For further information Partner should refer to the statement released by the FTC regarding these guidelines.

1.5. Other Partner Terms

  1. Partner must have purchased a BrainFirst program. 
  2. Partner must have an active PayPal account in which to receive payment of any Referral Fees.  This is the only method in which BrainFirst will pay You the Referral Fees.  If you do not currently have a PayPal account, you can sign up here
  3. If the Partner is an individual, You must be the older of (i) 18 years; or (ii) at least the age of majority in the jurisdiction where You reside and from where You carry out Partner activities.
  4. You confirm that You are becoming a Partner for the purposes of carrying on a business activity and not for any personal, household or family purpose. 
  5. To become a Partner, Partner must create a Partner Account by providing all information indicated as required. BrainFirst may reject an application for a Partner Account for any reason, in its sole discretion. Partner acknowledges that BrainFirst will use the email address provided by Partner as the primary method for communication. Partner is responsible for keeping its Partner Account password secure. BrainFirst cannot and will not be liable for any loss or damage arising from Partner’s failure to maintain the security of the Partner Account and password.
  6. Partner acknowledges and agrees that Partner will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Partner.
  7. Partner will promptly inform BrainFirst of any information known to Partner that could reasonably lead to a claim, demand or liability of or against BrainFirst by any third party.
  8. Partner acknowledges and agrees that BrainFirst may amend this Agreement at any time by posting the relevant amended and restated Partner Program Agreement on BrainFirst's website, available at and such amendments to the Agreement are effective as of the date of posting. If a significant change is made, BrainFirst will provide reasonable notice by email. Partner’s continued participation in the BrainFirst Partner Program after the amended Partner Program Agreement is posted to BrainFirst's website constitutes Partner’s agreement to, and acceptance of, the amended Agreement. If Partner does not agree to any changes to the Agreement, Partner must terminate the Agreement by discontinuing its participation in the BrainFirst Partner Program.
  9. Partner acknowledges and agrees that Partner’s participation in the BrainFirst Partner Program, including information transmitted to or stored by BrainFirst, is governed by the BrainFirst Policies.
  10. If Partner’s recruiting efforts include claims related to the potential income a BrainFirst customer can make, or if You make reference to income You have made, or if You make reference to any lifestyle opportunities You have because of BrainFirst, the following guidelines must be adhered to: (a) Your statements must be completely true and accurate and supported by evidence; (b) if You use a hypothetical scenario, You must clearly label it as a hypothetical scenario; and (c) Your statements must be accompanied by an Income Disclosure Statement.

2. Referral Fees

2.1. Payment of Fees

  1. Upon acceptance into the Partner Program, You will be assigned one or more unique Partner URLs that You will use to advertise BrainFirst. When another person (a “Prospect”) clicks through that URL, a cookie (or similar tracking technology (hereinafter “Cookie”)) will be set in the Prospect’s browser. When the Prospect creates a BrainFirst account by using Your Partner URL, the Cookie on the Prospect’s browser, corresponding to Your unique URL, registers a “Sale,” and each such sale is a “Sold Program.” In the event that a Prospect has multiple Partner Cookies, the most recently-acquired Cookie will determine which Partner is credited with a Sale. In the event that a Sold Program later upgrades its BrainFirst account, such upgrade will be credited to the Partner that was the original referring Partner, despite the fact that such update may have come through a different Partner account.
  2. Subject to Partner’s compliance with this Agreement, You will be entitled to a referral fee for each Sold Program under the Partner Program that generates a payment to BrainFirst. The referral fee amount is 10% of all fees received by BrainFirst for a Sold Program (the “Referral Fees”). Payments of any Referral Fees will be made on the 28th of each month following BrainFirst's receipt of such payments.
  3. Referral Fees are paid only for transactions that actually occur between BrainFirst and a Prospect. If the transaction does not actually occur, or if payment from a Sale is not actually received by BrainFirst, You will not be paid a Referral Fee on the transaction. If a referral does not link or attach to Your Partner account within 30 days from such referral’s purchase of BrainFirst's services, such referral will not be deemed Your Sold Program and You will not be entitled to any Referral Fees from such referral. In order for an account to be linked to your Partner account, a referral must either use your affiliate link directly or reach out to [email protected] within those first 30 days requesting to be linked.  If payment for a Sold Program later results in a refund or charge-back, and if a Referral Fee was paid to You for that Sold Program payment, then the applicable Referral Fee will be deducted from any future Referral Fees. If BrainFirst determines, in its reasonable discretion, that any Sale was procured fraudulently or as a result of any violation of this Agreement, in addition to BrainFirst's rights under Section 3.1, no Referral Fees will be paid to You for such Sale, or if such violation or fraud is discovered by BrainFirst after payment, such amounts shall be deducted from any future Referral Fees.  A referral may request at any time to be removed from Your Partner Account and upon such request, You will no longer be entitled to receive any Referral Fees for such referral.
  4. No Referral Fees will be paid on any Sold Program that is an affiliated business of the applicable Partner.
  5. Prospects that are referred to BrainFirst through a customer account that is not a participant in the Partner Program may receive an email notification from BrainFirst inviting them to join the Partner Program.  Referral Fees from such referrals will be paid if the customer joins the Partner Program within two (2) months of such notification.  If the customer does not join the Partner Program within such two (2) month period, such Referral Fees will be forfeited even if such customer later joins the Partner Program. 


2.2. Partner Representations; Taxes

  1. Partner hereby represents and warrants to Company that You are engaged in an independent business enterprise, and that You have complied with all business requirements necessary to operate Partner's business, if any, such as licensing, tax and other business operation requirements.
  2. You are responsible for any and all tax liabilities, including without limitation income tax liabilities that arise from or in any way relate to any Referral Fees You receive from BrainFirst. If You are not a resident of the United States, BrainFirst may withhold tax (including without limitation VAT) where required to by applicable law. Where BrainFirst is required to withhold tax, BrainFirst will document such withholding.

2.3. Inventory Loading/Rebates

Partner will not be paid any Referral Fees for payments made on Your own User Account(s). Partner is not permitted to open a BrainFirst account under the name of another person or entity, or under a fictitious name. Partner is not permitted to open a BrainFirst account under any name merely for the purpose of obtaining Referral Fees or any other compensation, including without limitation incentives or prizes that may be offered from time to time. Partner may not pay for another person’s account. Partner is not permitted to refer itself or any affiliated business. Partner is not permitted to offer cash rebates or other monetary incentives to actual or potential Sales. Violation of this paragraph shall constitute a material breach of this Agreement, and You agree to repay to BrainFirst all Referral Fees earned as a result of any such violation.

3. Termination

3.1. Termination

  1. Unless otherwise specified in the Agreement, any Party may terminate this Agreement at any time, with or without cause, effective immediately upon notice to another Party.
  2. Fraudulent or other unacceptable behavior by Partner, including breach of this Agreement or any BrainFirst Policies, as determined by BrainFirst in its sole discretion, may result in one or more of the following actions being taken by BrainFirst: (a) termination of Your affiliation with BrainFirst in its entirety and termination of all services provided to You; (b) suspension of some or all of Your privileges under the Partner Program; and/or (c) termination of Your Partner account entirely without notice to, or recourse for, You, in which case You shall forfeit all Referral Fees owed to You, either as of the date of termination or thereafter accruing.
  3. At any time that your BrainFirst customer account is cancelled or suspended by either Party, Partner’s participation in the Partner Program shall be automatically terminated and Partner shall no longer be entitled to any further Referral Fees. If Partner later activates a BrainFirst customer account, Partner will be entitled to apply for participation in the Partner Program and to earn Referral Fees on any new Sold Programs. For the purpose of clarity, Partner will forfeit all Referral Fees from its Sold Programs prior to such termination.

3.2. Results of Termination

  1. Upon termination of this Agreement: (a) Partner will immediately cease displaying any BrainFirst Materials (as defined below) or any BrainFirst Trademarks (as defined below) on any website or otherwise; and (b) all rights granted to Partner under this Agreement will immediately cease, including but not limited to the right of Partner to access the Partner Account and Partner Dashboard, or to receive any payments of Referral Fees under this Agreement, unless otherwise determined by BrainFirst in its sole discretion.
  2. This Section 3.2 and the following Sections will survive any termination or expiration of this Agreement: Section 4.5 (Proprietary Rights of BrainFirst), Section 5 (Confidentiality), Section 6 (Disclaimer of Warranty), Section 7 (Limitation of Liability and Indemnification), and Section 8 (General Provisions). In addition, any provisions of this Agreement that by their nature are intended to survive, will survive termination.‍

4. Intellectual Property Rights

4.1. BrainFirst Materials

  1. All BrainFirst Materials will be solely created and provided by BrainFirst unless otherwise agreed to by BrainFirst in writing in advance. BrainFirst will provide Partner with copies of, or access to, BrainFirst Materials. By using the BrainFirst Materials, You indicate Your acceptance of our usage guidelines set forth in this Agreement and You understand that a violation of these guidelines or this Agreement will result in the termination of Your license or permission to use the BrainFirst Materials. The BrainFirst Materials are provided “as is” and without warranty of any kind.
  2. Partner may display BrainFirst Materials on its websites solely for the purpose of marketing and promoting BrainFirst and its products and services during the term of this Agreement, or until such time as BrainFirst may, upon reasonable prior notice, instruct Partner to cease displaying the BrainFirst Materials. Partner may not alter, amend, adapt or translate the BrainFirst Materials without BrainFirst's prior written consent. Nothing contained in any BrainFirst Materials will in any way be deemed a representation or warranty of BrainFirst. The BrainFirst Materials will at all times be the sole and exclusive property of BrainFirst and no rights of ownership will at any time vest with Partner even in such instances where Partner has been authorized by BrainFirst to make changes or modifications to the BrainFirst Materials.
  3.  BrainFirst Materials” means any marketing or promotional materials relating to BrainFirst or its platform or products, including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the BrainFirst Trademarks.

4.2. BrainFirst Trademarks

  1. During the term of this Agreement, BrainFirst hereby grants to Partner a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the BrainFirst Trademarks for the sole purpose of marketing and promoting BrainFirst and its products and services. Partner acknowledges and agrees that: (a) it will use BrainFirst's Trademarks only as permitted under this Agreement; (b) it will use the BrainFirst Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by BrainFirst in writing from time to time; (c) the BrainFirst Trademarks are and will remain the sole property of BrainFirst; (d) nothing in this Agreement will confer in Partner any right of ownership in the BrainFirst Trademarks and all use thereof by Partner will inure to the benefit of BrainFirst; (e) Partner will not, now or in the future, apply for or contest the validity of any BrainFirst Trademarks; and (f) Partner will not, now or in the future, apply for or use any term or mark confusingly similar to any BrainFirst Trademarks.
  2. BrainFirst Trademarks” means the trademarks, logos, service marks and trade names of BrainFirst LLC, whether registered or unregistered, including but not limited to the word mark BrainFirst and the “BF” design.

4.3. Trademark Usage Guidelines

Partner shall only use and visually present the BrainFirst Trademarks as follows. Partner agrees that Your use of the BrainFirst Trademarks in violation of these guidelines will result in automatic termination of Your participation in the Partner Program, this Agreement, and the license and/or permission to use the BrainFirst Trademarks.

  1. Your use must not mislead consumers as to our sponsorship of, affiliation with or endorsement of your company or your products or services.
  2. The BrainFirst Trademarks are our exclusive property. All goodwill that results from Your use of the BrainFirst Trademarks will be solely to our benefit. You will not take any action that is at odds with our rights or ownership of the BrainFirst Trademarks.
  3. The BrainFirst Trademarks must be used in a respectful manner. The BrainFirst Trademarks may not be used in a way that harms us, our products or services, or in a manner which, in our opinion, lessens or otherwise damages our reputation or the goodwill in our brand assets. You may not associate the BrainFirst Trademarks or any other of our brand assets with any illicit or illegal activities or use them in a way that is deceptive or harmful.
  4. You may use the BrainFirst® mark to advertise BrainFirst in your non-paid advertising. Any time You use the BrainFirst® mark, You must do so in a way that is not likely to confuse readers or cause them to think that You are speaking for BrainFirst. Whether Your use of BrainFirst® is confusing will be determined by BrainFirst in BrainFirst’ sole and absolute discretion.
  5. Any time You use the word “ BrainFirst” it must be immediately followed by the “Circle R” “®” denoting it as a registered trademark of BrainFirst, LLC.

You must plainly display (i.e., not in a link, or in small font) the following disclaimer in any website, social media site, email, and/or other communication or media You choose to use: I am not an employee, agent or representative of BrainFirst, LLC. BrainFirst does not in any way endorse my products or services. I am an independent BrainFirst Partner and I receive referral payments from BrainFirst in this role. All opinions expressed herein are my own and are not official statements of BrainFirst or any party affiliated with BrainFirst.

4.4. Restrictions on Partner’s Use of the BrainFirst Trademarks

Notwithstanding Section 4.1, Partner will not:

  1. use the BrainFirst Trademarks or variations or misspellings thereof in Partner’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains, sub-domains and page URLs), products or services (including without limitation, in the name or design of any application or theme), unless granted express written permission by BrainFirst in advance of each use; or
  2. purchase or register search engine or other pay-per-click keywords (such as Google AdWords), trademarks, email addresses or domain names that use the BrainFirst Trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to the BrainFirst Trademarks.

4.5. Proprietary Rights of BrainFirst

As between Partner and BrainFirst, the BrainFirst Materials, BrainFirst Trademarks, all information relating to BrainFirst's products and services, and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of BrainFirst or otherwise related to BrainFirst's services, the Partner Program, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, BrainFirst Property”) will be and remain the sole and exclusive property of BrainFirst. To the extent, if any, that ownership of any BrainFirst Property does not automatically vest in BrainFirst by virtue of this Agreement, or otherwise, and vests in Partner, Partner hereby transfers and assigns to BrainFirst, upon the creation thereof, all rights, title and interest Partner may have in and to such BrainFirst Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.

5. Confidentiality

5.1 Definition

“Confidential Information” will include, but will not be limited to, any and all information associated with a Party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary. For the avoidance of doubt, as between BrainFirst and Partner, any information related to a BrainFirst customer or other partner is the Confidential Information of BrainFirst.

5.2 Covenants

Each Party agrees to use the other Party’s’ Confidential Information solely as necessary for performing its obligations under this Agreement and in accordance with any other obligations in this Agreement including this Section 5. Each Party agrees that it will take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations under this Agreement, who each will treat such Confidential Information as provided in this Agreement, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained in this Agreement; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement, provided that, if legally permitted, the receiving Party will give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information will not include any information that the receiving Party can prove: (A) was already in the public domain, or was already known by or in the possession of the receiving Party, at the time of disclosure of such information; (B) is independently developed by the receiving Party without use of or reference to the other Party’s/ies’ Confidential Information, and without breaching any provisions of this Agreement; or (C) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of this Agreement.

6. Disclaimer of Warranty

The BrainFirst Partner Program, the BrainFirst products and services, the BrainFirst Trademarks, and the BrainFirst Materials are provided “as-is”. BrainFirst makes no warranties under this Agreement, and BrainFirst expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability, non-infringement or fitness for a particular purpose. Without limiting the foregoing, BrainFirst further disclaims all representations and warranties, express or implied, that the BrainFirst products and services, the BrainFirst Trademarks, or the BrainFirst Materials satisfy all of Partner’s requirements and or will be uninterrupted, error-free or free from harmful components.‍

7. Limitation of Liability and Indemnification

7.1. Limitation of Liability

 BrainFirst will have no liability with respect to the BrainFirst Partner Program, the BrainFirst products and services, the BrainFirst Trademarks, the BrainFirst Materials or BrainFirst's obligations under this Agreement or otherwise for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for losses of profits, goodwill, use, data or other intangible losses resulting in any way from BrainFirst's products and services, the BrainFirst Trademarks, the BrainFirst Materials or Partner’s participation or inability to participate in the BrainFirst Partner Program, even if BrainFirst has been advised of the possibility of such damages. In any event, BrainFirst's liability to Partner under this Agreement for any reason will be limited to the Referral Fees paid to Partner by BrainFirst during the six (6) month period immediately preceding the event giving rise to the claim for damages. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The foregoing limitations will apply to the fullest extent permitted by applicable law.

7.2. Partner Indemnification

Partner agrees to indemnify, defend and hold harmless BrainFirst and the directors, managers, officers, owners, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “claims”), to the extent that such claim is based upon or arises out of: (a) Partner’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Partner’s negligence or wilful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to BrainFirst granted by Partner to any third party; (d) Partner’s breach of any term of this Agreement or the BrainFirst Policies (including any documents it incorporates by reference); (e) any third party claim that Partner’s products or services infringes the intellectual property or other rights of a third party; (f) Partner’s taxes, including any audits or penalties related thereto; (g) the performance, non-performance or improper performance of the Partner’s products or services; and (h) Partner’s non-compliance or violation of any applicable laws, rules or regulations, including the FTC guidelines.

7.3. Notice of Indemnification

In claiming any indemnification under this Agreement, the Indemnified Party will promptly provide Partner with written notice of any claim that the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Partner will control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the Partner will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.


8. General provisions

8.1. Force Majeure

 BrainFirst will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control including acts of God, labor disputes or other industrial disturbances, pandemics, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

8.2. Independent Contractors

The Parties to this Agreement are independent contractors. Neither Party is an agent, employee, representative or related entity of the other Party. Neither BrainFirst nor the Partner will have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.

8.3. Non-Exclusivity

Nothing in this Agreement is intended to create, nor will it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement will not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.

8.4. Notice

Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally, or by email to Partner’s email address listed in the Partner Account, and to [email protected]; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid. Notice will be sent to the Partner at the address provided in the Partner Account, and to BrainFirst at 30 N Gould St, Sheridan, WY, 82801, Attention: Legal Department.

8.5. No Waiver

The failure of any Party to insist upon or enforce strict performance by another Party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect. Each waiver will be set forth in a written instrument signed by the waiving Party.

8.6. Entire Agreement

This Agreement, including all BrainFirst Policies listed on, any completed application form and all guidelines and other documents linked or otherwise incorporated or referenced in this Agreement, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof (including, but not limited to, any prior version of this Agreement). Neither BrainFirst nor the Partner will be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by another Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.

8.7. Assignment

All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, permitted assigns and legal representatives. BrainFirst will be permitted to assign this Agreement without notice to or consent from Partner. Partner will have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, to any third party without BrainFirst's prior written consent, to be given or withheld in BrainFirst's sole discretion.

8.8. Applicable Laws

This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without regard to principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement and is hereby expressly excluded.

The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Orange County, California and appellate courts having jurisdiction of appeals from such courts with respect to any dispute or claim arising out of or in connection with this Agreement.

8.9. Competitive or Similar Materials

 BrainFirst is not precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing or developing for or by third parties, as well as marketing and distributing materials, products or services that are competitive with Partner’s products or services, provided that BrainFirst does not use Partner’s Confidential Information in so doing.

8.10. Modifications to this Agreement

 BrainFirst may modify this Agreement (including any BrainFirst Policies) at any time by posting a revised version on the BrainFirst website or by otherwise notifying Partner in accordance with Section 8.4. By continuing to participate in the Partner Program after the effective date of any modifications to this Agreement, Partner agrees to be bound by the modified terms.  It is Your responsibility to check the BrainFirst website regularly for modifications to this Agreement.  We last modified this Agreement on the date listed on the end of this Agreement.  

8.11. Language

All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.

8.12. Non-exclusive remedies

In the event of any breach or threatened breach by Partner of any provision of this Agreement, in addition to all other rights and remedies available to BrainFirst under this Agreement and under applicable law, BrainFirst will have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security; (b) immediately terminate this Agreement and Partner’s access to the Partner Program; (c) receive a prompt refund of all amounts paid to Partner under this Agreement; and (d) be indemnified for any losses, damages or liability incurred by BrainFirst in connection with such violation, in accordance with the provisions of Section 7.

8.12. Severability

If any provision of this Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision of the Agreement, and the Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained within the Agreement.

8.13  BrainFirst's Right to Monitor

 BrainFirst has the right, but not the obligation, to monitor or investigate any Partner website and Your use of BrainFirst's products or services at any time for compliance with this Agreement or the BrainFirst Policies.  Our determination of whether a violation of any of these terms has occurred will be final and binding and any action taken with respect to enforcing this Agreement or any other terms, including taking no action at all, will be at our sole discretion.