Terms of Service

These Terms of Service (“Terms”) constitute a legally binding agreement between Brellium, Inc., a Delaware corporation (“Brellium,” “we,” “us,” or “our”) and the entity or individual identified in the applicable Order Form (“Customer,” “you,” or “your”). By executing an Order Form that references these Terms, or by accessing or using the Services, you agree to be bound by these Terms. If you are entering into these Terms on behalf of an organization, you represent that you have the authority to bind that organization.

1. Definitions

• “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means ownership of more than 50% of the voting securities.
• “Authorized Users” means Customer’s employees, contractors, and agents who are authorized by Customer to access and use the Services under Customer’s account.
• “Confidential Information” means any non-public information disclosed by one party to the other that is designated as confidential or that a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure.
• “Customer Data” means all data, including Protected Health Information, that Customer or its Authorized Users submit to, store within, or transmit through the Services.
• “Documentation” means the user guides, online help, release notes, and other technical documentation made available by Brellium for the Services.
• “Order Form” means the mutually executed ordering document specifying the Services, subscription term, fees, and any additional terms agreed upon by the parties.
• “Protected Health Information” or “PHI” shall have the meaning set forth in 45 C.F.R. § 160.103.
• “Services” means Brellium’s cloud-based clinical compliance platform and any related professional services as specified in the applicable Order Form.
• “Service Level Agreement” or “SLA” means the service availability and support commitments described in Section 6.

2. Services and License

2.1 Access Grant. Subject to these Terms and payment of applicable Fees, Brellium grants Customer a non-exclusive, non-transferable, non-sublicensable right during the Subscription Term to access and use the Services solely for Customer’s internal business operations in accordance with the Documentation and the applicable Order Form.

2.2 Authorized Users. Customer may permit its Authorized Users to access and use the Services on Customer’s behalf. Customer is responsible for all acts and omissions of its Authorized Users, including compliance with these Terms.

2.3 Restrictions. Customer shall not, and shall not permit any third party to: (a) sublicense, sell, resell, transfer, assign, or distribute the Services; (b) modify, create derivative works of, or reverse engineer any part of the Services; (c) access the Services to build a competitive product or service, or copy any features, functions, or graphics of the Services; (d) use the Services in violation of applicable law; (e) transmit any viruses, malware, or other harmful code through the Services; or (f) exceed any usage limits specified in the applicable Order Form.

2.4 Service Modifications. Brellium may update, modify, or enhance the Services from time to time. Brellium will not materially reduce the core functionality of the Services during a Subscription Term without Customer’s consent, except as required by law or to address security concerns.

3. Customer Obligations

3.1 Account Security. Customer is responsible for maintaining the confidentiality of its account credentials and for all activities that occur under its account. Customer shall promptly notify Brellium of any unauthorized use of its account.

3.2 Compliance. Customer shall comply with all applicable laws, rules, and regulations in connection with its use of the Services, including without limitation HIPAA, the HITECH Act, and applicable state privacy laws.

3.3 Cooperation. Customer shall provide reasonable cooperation and access to information as necessary for Brellium to perform the Services, including timely integration with Customer’s electronic medical record systems and other third-party applications.

3.4 Acceptable Use. Customer shall use the Services only for their intended purpose of clinical compliance auditing, quality assurance, and related healthcare operations. Customer shall not use the Services to make final clinical decisions without independent professional judgment.

4. Fees and Payment

4.1 Fees. Customer shall pay the Fees specified in the applicable Order Form. Unless otherwise stated in the Order Form, all Fees are invoiced annually in advance and are due within thirty (30) days of the invoice date. All Fees are quoted in U.S. Dollars.

4.2 Late Payments. Overdue amounts shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law. If Customer’s account is more than sixty (60) days overdue, Brellium may suspend access to the Services upon ten (10) days’ prior written notice until all outstanding amounts are paid in full.

4.3 Taxes. All Fees are exclusive of applicable taxes. Customer is responsible for all sales, use, value-added, and similar taxes imposed by any governmental authority, excluding taxes based on Brellium’s net income.

4.4 Fee Adjustments. Unless otherwise specified in the Order Form, Brellium may increase Fees upon renewal by providing at least sixty (60) days’ written notice prior to the start of the renewal term.

5. Data Rights and Privacy

5.1 Customer Data Ownership. As between the parties, Customer retains all right, title, and interest in and to Customer Data. Customer grants Brellium a non-exclusive, worldwide license to use, process, and store Customer Data solely as necessary to provide the Services in accordance with these Terms.

5.2 HIPAA Compliance. To the extent that Brellium creates, receives, maintains, or transmits PHI on behalf of Customer, the parties shall execute a Business Associate Agreement (“BAA”), which is incorporated by reference into these Terms. In the event of a conflict between these Terms and the BAA with respect to PHI, the BAA shall control.

5.3 Data Security. Brellium shall implement and maintain administrative, physical, and technical safeguards designed to protect Customer Data in accordance with industry standards, including SOC 2 Type II controls and HIPAA Security Rule requirements. Brellium shall maintain encryption of Customer Data at rest (AES-256) and in transit (TLS 1.3).

5.4 De-Identified Data. Brellium may create and use de-identified and aggregated data derived from Customer Data for purposes of improving the Services, conducting research, and generating industry benchmarks, provided that such data has been de-identified in accordance with 45 C.F.R. § 164.514 and cannot reasonably be used to identify any individual.

5.5 Data Return and Deletion. Upon termination of the Agreement and Customer’s written request, Brellium shall make Customer Data available for export in a standard machine-readable format for a period of thirty (30) days. Following such period, Brellium shall delete Customer Data in accordance with its standard data retention policies, except as required by applicable law.

5.6 Subprocessors. Customer acknowledges that Brellium may engage third-party subprocessors to assist in providing the Services. Brellium shall maintain a current list of subprocessors and provide notice of material changes. Brellium shall ensure that each subprocessor is bound by data protection obligations no less protective than those contained in these Terms.

6. Service Levels and Support

6.1 Availability. Brellium shall use commercially reasonable efforts to maintain Service availability of at least 99.9% during each calendar month, measured excluding scheduled maintenance windows. Scheduled maintenance will be performed during off-peak hours with at least 48 hours’ advance notice.

6.2 Service Credits. If Brellium fails to meet the availability commitment in any calendar month, Customer shall be eligible for a service credit as follows:

• 99.0% – 99.9% availability: 5% credit of that month’s Fees
• 95.0% – 98.9% availability: 10% credit of that month’s Fees
• Below 95.0% availability: 25% credit of that month’s Fees

Service credits must be requested within thirty (30) days of the month in which the downtime occurred and shall be applied against future invoices. Service credits are Customer’s sole and exclusive remedy for Brellium’s failure to meet the availability commitment.

6.3 Support. Brellium shall provide technical support during business hours (Monday–Friday, 8:00 AM–6:00 PM Eastern Time, excluding U.S. federal holidays). Critical issues (complete service unavailability) will receive an initial response within one (1) hour; high-priority issues within four (4) hours; and standard issues within one (1) business day.

7. Intellectual Property

7.1 Brellium IP. Brellium and its licensors retain all right, title, and interest in and to the Services, Documentation, and all related intellectual property rights, including patents, copyrights, trade secrets, and trademarks. No rights are granted to Customer except as expressly set forth in these Terms.

7.2 Feedback. If Customer provides suggestions, ideas, or other feedback regarding the Services (“Feedback”), Brellium may freely use such Feedback without obligation to Customer. Nothing in this section obligates Customer to provide Feedback.

7.3 Trademarks. Neither party may use the other party’s trademarks, trade names, or logos without the other party’s prior written consent, except that Brellium may identify Customer as a customer in marketing materials unless Customer opts out in writing.

8. Confidentiality

8.1 Obligations. Each party shall: (a) protect the other party’s Confidential Information using the same degree of care it uses for its own confidential information, but not less than reasonable care; (b) not use the other party’s Confidential Information for any purpose outside the scope of this Agreement; and (c) limit disclosure of Confidential Information to those employees, contractors, and agents who have a need to know and are bound by confidentiality obligations at least as protective as those in this section.

8.2 Exclusions. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the receiving party; (b) was rightfully known to the receiving party prior to disclosure; (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or (d) is rightfully received from a third party without restriction on disclosure.

8.3 Required Disclosure. A receiving party may disclose Confidential Information to the extent required by law or legal process, provided that it gives the disclosing party prompt written notice (to the extent legally permitted) and reasonable assistance in seeking a protective order.

9. Representations and Warranties

9.1 Mutual Warranties. Each party represents and warrants that: (a) it has the legal power and authority to enter into these Terms; (b) these Terms constitute a valid and binding obligation; and (c) its performance under these Terms will not violate any applicable law or breach any agreement with a third party.

9.2 Service Warranty. Brellium warrants that during the Subscription Term: (a) the Services will perform materially in accordance with the Documentation; (b) Brellium will not materially decrease the functionality or security of the Services; and (c) Brellium maintains all certifications, licenses, and registrations necessary to provide the Services.

9.3 Malware Warranty. Brellium warrants that it employs commercially reasonable measures to ensure the Services do not contain any viruses, malware, or other harmful code.

9.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND BRELLIUM DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BRELLIUM DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. THE SERVICES ARE NOT INTENDED TO REPLACE THE INDEPENDENT PROFESSIONAL JUDGMENT OF QUALIFIED HEALTHCARE PROVIDERS.

10. Limitation of Liability

10.1 Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, GOODWILL, OR DATA, ARISING OUT OF OR RELATED TO THESE TERMS, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 Liability Cap. EXCEPT FOR THE EXCLUSIONS IN SECTION 10.3, EACH PARTY’S TOTAL AGGREGATE LIABILITY UNDER THESE TERMS SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10.3 Exclusions from Cap. The limitations in Sections 10.1 and 10.2 shall not apply to: (a) either party’s indemnification obligations under Section 11; (b) either party’s breach of Section 8 (Confidentiality); (c) Brellium’s breach of Section 5 (Data Rights and Privacy); (d) Customer’s payment obligations; or (e) either party’s fraud, gross negligence, or willful misconduct.

11. Indemnification

11.1 Brellium Indemnification. Brellium shall defend, indemnify, and hold harmless Customer and its officers, directors, employees, and agents from and against any third-party claims, losses, damages, and reasonable expenses (including attorneys’ fees) arising from: (a) any allegation that Customer’s authorized use of the Services infringes a third party’s intellectual property rights; (b) Brellium’s breach of its data security or privacy obligations under these Terms; or (c) Brellium’s gross negligence or willful misconduct.

11.2 Customer Indemnification. Customer shall defend, indemnify, and hold harmless Brellium and its officers, directors, employees, and agents from and against any third-party claims, losses, damages, and reasonable expenses (including attorneys’ fees) arising from: (a) Customer Data or Customer’s use of the Services in violation of applicable law or these Terms; (b) Customer’s breach of its obligations under these Terms; or (c) Customer’s gross negligence or willful misconduct.

11.3 Indemnification Procedure. The indemnified party shall: (a) promptly notify the indemnifying party of any claim; (b) grant the indemnifying party sole control of the defense and settlement (provided that the indemnifying party shall not settle any claim without the indemnified party’s consent if the settlement imposes obligations on the indemnified party); and (c) provide reasonable cooperation at the indemnifying party’s expense.

11.4 IP Remediation. If the Services become, or in Brellium’s reasonable opinion are likely to become, the subject of an infringement claim, Brellium may, at its option: (a) procure the right for Customer to continue using the Services; (b) replace or modify the Services to make them non-infringing without materially reducing functionality; or (c) if neither (a) nor (b) is commercially practicable, terminate the affected Order Form and refund any prepaid Fees for the unused portion of the Subscription Term.

12. Term and Termination

12.1 Subscription Term. The initial Subscription Term is specified in the applicable Order Form. Unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term, the Subscription Term shall automatically renew for successive periods equal to the initial Subscription Term.

12.2 Termination for Cause. Either party may terminate these Terms upon written notice if the other party: (a) materially breaches these Terms and fails to cure such breach within thirty (30) days of receiving written notice; or (b) becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation that is not dismissed within sixty (60) days.

12.3 Termination for Convenience. Customer may terminate an Order Form for convenience upon ninety (90) days’ prior written notice, subject to payment of all Fees due through the end of the then-current Subscription Term.

12.4 Effect of Termination. Upon termination: (a) all rights granted to Customer under these Terms shall immediately cease; (b) Customer shall cease all use of the Services and return or destroy all Confidential Information of Brellium; (c) Brellium shall make Customer Data available for export as described in Section 5.5; and (d) any outstanding payment obligations shall survive.

12.5 Survival. Sections 1 (Definitions), 4 (Fees and Payment, to the extent of accrued obligations), 5 (Data Rights and Privacy), 7 (Intellectual Property), 8 (Confidentiality), 9.4 (Disclaimer), 10 (Limitation of Liability), 11 (Indemnification), 12.4 (Effect of Termination), 12.5 (Survival), and 13 (General Provisions) shall survive any termination or expiration of these Terms.

13. General Provisions

13.1 Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles.

13.2 Dispute Resolution. Any dispute arising out of or relating to these Terms shall first be subject to good-faith negotiation between the parties for a period of thirty (30) days. If the dispute is not resolved through negotiation, it shall be submitted to binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration shall take place in New York, New York, and the arbitrator’s decision shall be final and binding.

13.3 Notices. All notices under these Terms shall be in writing and shall be deemed given when: (a) delivered personally; (b) sent by confirmed email to the address specified in the Order Form; or (c) one (1) business day after deposit with a nationally recognized overnight courier.

13.4 Assignment. Neither party may assign these Terms without the prior written consent of the other party, except that either party may assign these Terms in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets upon written notice to the other party.

13.5 Force Majeure. Neither party shall be liable for any failure or delay in performance due to causes beyond its reasonable control, including acts of God, natural disasters, pandemics, government actions, labor disputes, power or internet failures, or third-party service disruptions. The affected party shall provide prompt notice and use commercially reasonable efforts to resume performance.

13.6 Entire Agreement. These Terms, together with all Order Forms, the BAA, and any applicable Statements of Work, constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals, or representations, whether written or oral, relating to the subject matter hereof.

13.7 Amendment. These Terms may only be amended by a written instrument signed by authorized representatives of both parties. Brellium may update these Terms from time to time; material changes will be communicated with at least thirty (30) days’ notice and will not apply to existing Subscription Terms without Customer’s consent.

13.8 Severability. If any provision of these Terms is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect, and the invalid provision shall be modified to the minimum extent necessary to make it valid and enforceable.

13.9 Waiver. The failure of either party to enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. Any waiver must be in writing and signed by the waiving party.

13.10 Independent Contractors. The parties are independent contractors. Nothing in these Terms shall be construed to create a partnership, joint venture, or agency relationship between the parties.

13.11 Non-Solicitation. During the Subscription Term and for twelve (12) months thereafter, neither party shall directly solicit for employment any employee of the other party who was materially involved in the performance of these Terms, without the other party’s prior written consent. General job postings and unsolicited applications shall not constitute solicitation.

13.12 Insurance. Brellium shall maintain commercially reasonable insurance coverage throughout the Subscription Term, including commercial general liability, professional liability (errors and omissions), cyber liability, and workers’ compensation insurance, each with coverage limits of at least $1,000,000 per occurrence.

13.13 Export Compliance. Each party shall comply with all applicable export control laws and regulations in connection with the Services and shall not export or re-export the Services in violation thereof.

13.14 Government Use. If Customer is a U.S. government entity, the Services are provided as “commercial computer software” and “commercial computer software documentation” as defined in 48 C.F.R. § 2.101, and use, duplication, and disclosure are subject to the restrictions set forth in these Terms.

Contact Information

For questions about these Terms, contact us at: legal@brellium.com

Brellium, Inc.
475 Park Avenue South, Floor 3
New York, NY 10016