If you accessing the Site or using the Service on behalf of a third party that has entered into a separate agreement with Brainitz in connection with the Services (“Services Agreement”), your use of the Site and Services will also be subject to the terms and conditions of the Services Agreement.
BY REGISTERING FOR THE SITE OR SERVICE, OR BY OTHERWISE ACCESSING THE SITE OR USING ANY OF THE SERVICES YOU AGREE TO BE BOUND BY THESE TERMS AND THE CODE OF CONDUCT.
2. REGISTRATION. You may access certain online features of the Services through your account on the Site (your “Account”). You may log into your Account using a unique username and password. You are responsible for safeguarding your password and you agree not to disclose your password to any third party. You are solely responsible for any actions taken under your username. You agree that the information that you provide to Brainitz about yourself upon registration of your Account, and at all other times, (“Customer Data”) will be true, accurate, current and complete, and you further agree that you will maintain and promptly update the Customer Data to ensure that it remains true, accurate, current and complete. You may not impersonate any other person or use a username or password that you are not authorized to use. Brainitz reserves the right to require you to change your password for any reason at any time. If you become aware of any unauthorized use of your Account, you agree to notify Brainitz immediately at firstname.lastname@example.org.
3. YOUR CONTENT AND DERIVATIVE WORKS. In connection with your access to, or use of, the Site or the Services, you may have the opportunity upload to the Site certain information, videos, data, documents, and other materials (“Pre-Existing Content”). As between you and Company, you remain the owner of all Pre-Existing Content that you make available in connection with the Services. You unconditionally grant to Brainitz all rights to your Pre-Existing Content necessary to perform the Services. You represent and warrant to Brainitz that you have all rights necessary to provide the license and make the Pre-Existing Content available on the Site and that you are the owner of the Pre-Existing Content. You grant Brainitz full authority to develop Derivate Works using the Site and Services based on the Pre-Existing Content, whether made by Brainitz staff or by others, including you, using the Site and Services. You acknowledge and agree that all Derivative Works developed using the Site and Services shall belong solely to Brainitz and you shall have a non-exclusive license to use the Derivative Works through the Site and Services. For the purposes of these Terms, “Derivative Works” shall mean: (i) for material subject to copyright, registered or unregistered design protection, any work which is based on Pre-Existing Content, such as revision, modification, improvement, upgrades, translation, abridgment, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted using the Site and Services; and (ii) for material subject to trade secret protection, any new material, information or data relating to and derived from the Pre-Existing Content using the Site and Services, including new material which may be protected by copyright, patent or other proprietary right, and, with respect to each of the above, the preparation and/or use of which, in the absence of this Agreement or other authorization from the owner, would constitute infringement under applicable law.
4. REVIEW OF CONTENT AND MATERIALS. We may review your conduct and content for compliance with these Terms and our Code of Conduct. However, we have no obligation to do so. We aren’t responsible for your compliance with these Terms or the Code of Conduct, or any other party’s compliance with these Terms or the Code of Conduct.
5. THIRD PARTY SOFTWARE AND LINKING. Although we may make software, hyperlinks, and other products of third-party companies available to you, your use of such products is subject to the respective terms and conditions imposed by the third party owning, manufacturing or distributing such products, and the agreement for your use will be between you and such third party. Brainitz makes no warranty with regard to the products or websites of any other entity. Brainitz has no control over the content or availability of any third-party software or website. In particular, (a) Brainitz makes no warranty that any third-party software you download or web site you visit will be free of any contaminating or destructive code, such as viruses, worms or Trojan horses and (b) it is your responsibility to become familiar with any web site's privacy and other policies and terms of service, and to contact that site's webmaster or site administrator with any concerns.
6. SUSPENSION AND TERMINATION. Brainitz reserves the right to suspend, modify, or terminate your access to and use of the Site and Services, at any time, without notice. Further, you agree that Brainitz shall not be liable to you or any third party for any termination, modification, or suspension of your access to the Site or Services.
7.1 THE SERVICES AVAILABLE THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND. BRAINITZ EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE OR SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.2 BRAINITZ, AND ITS PERSONNEL, ARE NOT ACTING AS LAWYERS OR FINANCIAL PROFESSIONALS IN PROVIDING THE SERVICES, AND THE SERVICES SHOULD NOT BE TREATED AS A SUBSTITUTE OR REPLACEMENT FOR LAWYERS OR FINANCIAL PROFESSIONS. BRAINITZ CANNOT AND DOES NOT PROVIDE ANY KIND OF ADVICE, EXPLANATION, OPINION, OR RECOMMENDATION ABOUT POSSIBLE LEGAL RIGHTS, REMEDIES OR STRATEGIES. NOR DOES BRAINITZ PROVIDE ANY FINANCIAL OR TAX PLANNING METHODS OR STRATEGIES. COMMUNICATIONS BETWEEN YOU AND BRAINITZ ARE NOT PROTECTED BY ATTORNEY-CLIENT PRIVILEGE.
8. PROPRIETARY AND PRIVACY PROTECTION FOR OTHER USERS’ CONTENT ON THE SITE. Brainitz hereby notifies you that all the information, content, image files, software and materials on the Site may be protected by U.S. and international copyright and other intellectual property laws and by other applicable laws, including privacy laws. You may not copy or distribute such material without the written consent of Brainitz.
9. INDEMNITY. You agree to indemnify, and hold Brainitz, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney's fees and costs, arising out of or in any way connected with (a) your access to or use of the Site or Services; (b) your violation of these Terms; (c) your violation of any third party right, including without limitation any intellectual property right or any publicity, confidentiality, property or privacy right; (d) any claim that your use of the Site or Services caused damage to a third party, or (e) any incorrect or fraudulent statements or information you provide in connection with the Services.
10. LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR ANY LIABILITY FOR BRAINITZ’S FRAUD, FRAUDULENT MISREPRESENTATION, OR GROSS NEGLIGENCE, IN NO EVENT WILL BRAINITZ, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR (B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, REGARDLESS OF LEGAL THEORY.
THIS LIMITATION APPLIES REGARDLESS OF WHETHER OR NOT BRAINITZ OR ANY OF ITS AFFILIATES HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
ADDITIONALLY, BRAINITZ, ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS WILL NOT BE LIABLE FOR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES FOR MORE THAN THE GREATER OF TWENTY DOLLARS ($20) OR THE AMOUNTS PAID BY YOU TO BRAINITZ FOR THE PAST TWELVE (12) MONTHS OF THE SERVICES IN QUESTION.
Some places don't allow the types of limitations in this paragraph, so they may not apply to you.
11.1 Modification. Brainitz may modify these Terms at any time. Modifications become effective immediately upon your first access to or use of the Site or Services after the “Last Revised” date at the top of these Terms. Your continued access to or use of the Site or Services after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms. If you do not agree with the modifications, do not access or use the Site or Services.
11.2 Applicable Law and Dispute Resolution. These Terms shall be governed by the laws of the State of Colorado without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction. If you believe that Brainitz has not adhered to these Terms, please contact us by e-mail at email@example.com do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation. If you and Brainitz are unable to reach a resolution to the dispute, you and Brainitz will settle the dispute exclusively under the rules of the American Arbitration Association (www.adr.org) at its Denver, Colorado office. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. YOU AND BRAINITZ AGREE THAT ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN BRAINITZ AND YOU INDIVIDUALLY. YOU ACKNOWLEDGE AND AGREE THAT YOU AND BRAINITZ ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Brainitz otherwise agree in writing, an arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Site or the Services or these Terms must be brought, if at all, within one year from the accrual of the claim or cause of action or be forever barred.
11.3 Contact. Brainitz is located in Colorado Springs, Colorado. Any questions, comments or suggestions, including any report of violation of these Terms should be provided to the Administrator as follows:
Postal Mail: Brainitz LLC
1225 N Weber St.
Colorado Springs, CO 80903
11.4 Entire Agreement. These Terms, along with any other applicable agreement referenced herein, constitutes the entire agreement between you and Brainitz and govern your use of the Site and the Services, superseding any prior agreements between you and Brainitz. The failure of Brainitz to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you and Brainitz nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect.
CODE OF CONDUCT
You agree not to misuse the Services or help or encourage any other party to misuse the Services. For example, and without limitation, you may not: