BrainTrain Terms of Use Agreement

Revised 11/01/2011
The use by you of this BrainTrain web site (“Site”), its content, software programs and your use of any online account you create at the Site (“Account”) is in accordance with the Terms of Use (“Terms”) specified below. These Terms are acknowledge by you to be a binding agreement that you agree to in whole with any restrictions. These terms of use may be changed, modified or updated at BrainTrain’s sole discretion and without any required notification to you. Any use of this Site or your Account after any changes are made to the Site automatically constitutes your agreement to those changes in Terms of Agreement. If you are ever in violation of these Terms then BrainTrain can, at its own discretion, warn you of your violations or it may at any time without any warning or notice discontinue or restrict your access to this Site or any component or sub-part of it with or without notice to you at any time. You fully agree that you do not have any rights to access or use this Site and that BrainTrain will have no liability to you if this Site is restricted to you, changed in any way, ceases to be accessible either temporarily or permanently. If now or at anytime you do not agree with any of these Terms, you agree to immediately stop all access, use or browsing of this Site and not access, close or delete your Account.

BrainTrain’s Site Content

All of the content on this Site, including its look and feel, graphic art work, displayed images, screen shots of its products, all text, any sound files including music, informational files or pdfs, downloadable or online use software, trademarks, logos, product, game and character names, slogans, and the overall compilation of the foregoing (“Content”) is the property of BrainTrain and its licensors and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws. Other company or individual third party content, including their trademarks, trade names, characters, and copyrights is recognized as the property of those third parties that market or license that content, and is used by BrainTrain subject to its license with them, or subject to the fair use provisions of U.S. copyright or trademark law. BrainTrain’s Content is provided for personal non-commercial use only. You are not permitted to use any of BrainTrain’s Content or third party content located on this Site in any publications, in public performances, for any commercial purpose or in connection with products or services that are not those of BrainTrain without specific written permission from BrainTrain. You also agree to not use the Content in any way to harm, discredit or cause confusion to the public regarding BrainTrain’s Products and intellectual property or to misuse or infringe BrainTrain’s or its licensor’s intellectual property rights. BrainTrain assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect, computer equipment or any property resulting from access to, use of, browsing on this site or downloading of any materials, data, text or images from the website. In addition, by using this website, the User expressly acknowledges and agrees that BrainTrain is not liable or responsible for any defamatory, offensive or illegal conduct of any kind by third parties. Also, BrainTrain is not responsible for the content of any off-site pages or of any other sites linked to this website. BrainTrain shall not be liable for the use or interpretation by others of information contained within this website. Decisions based on information contained in this website are the sole responsibility of the visitor and are made at the visitor’s sole risk. In consideration for access to and use of website, the visitor agrees to hold BrainTrain, and its subsidiaries and affiliates harmless from and against any and all damages and claims of any kind or nature arising from the use of this website or any decisions that the visitor makes based on such information.

User Content Posting Rules and General Site Use Conditions

On certain areas of our Site you will be allowed to create an Account and through that Account or through other means you may be permitted to chat or email with other users, submit comments, post photos and any other materials and content permitted or allowed by BrainTrain. The content you submit is referred to as “User Content.” Your posting of your User Content is subject to these Terms and the following posting rules (“Posting Rules”). Users found in violation of these Posting Rules or the Terms may have their Accounts terminated by BrainTrain, or may otherwise have their access to the Site restricted by BrainTrain. No Illegal, Infringing or Abusive Message Content or Conduct is permitted. You understand and acknowledge that you are responsible for your User Content. You are prohibited from transmitting any “sensitive” personally identifiable information over the Site, which may include, but not be limited to, any information about yourself or another person that may relate to health or medical conditions, social security numbers or national identifiers, credit card, bank account or other financial information, other information concerning trade union membership, sex life, political opinions, criminal charges or convictions, religious or philosophical beliefs, racial or ethnic origin, or other sensitive matters (“Sensitive Personal Information”). You agree not to post any content that is unlawful, damaging, contains cursing, is harmful, tortuous, defamatory, libelous, obscene, invasive of the privacy of another person, threatening, harassing, abusive, hateful, racist, infringing, or otherwise objectionable or inappropriate to any other people. You further agree that you will not otherwise engage in, or encourage others to engage in, illegal or abusive conduct or activities involving this Site. You also agree not to submit false or harassing reports or complaints to BrainTrain about other users. You are not allowed to violate any Third Party’s Rights. You agree that you will not post any content that contains personal information about any individual, violates the privacy of any other individual or entity, or anything that you are under a contractual obligation to keep private or confidential. You agree that you will not impersonate any person or organization, including without limitation, the personnel of BrainTrain. You further agree that you will not misrepresent an affiliation with another person or organization, nor will you post any content that contains slanderous or libelous comments about others, or that infringes any copyright, trademark, patent, trade secret or other intellectual property right of a third party. You agree not to use this Site in any commercial endeavor. This Site is intended to allow information exchanges, and for users to express their opinions. It is not a commercial site. Therefore, you agree that unless specifically permitted by BrainTrain, you will not post any content that contains business solicitation of any type, including advertising a product or service, offering a product or service for sale, or directing readers to a location for more information about a product or service. You are required to avoid and not willfully infect the Site or any User of the Site with a computer virus, corrupt the Site’s files or any User’s files, interfere with the Site’s functioning or the legitimate activity of any other User and to not develop, implement or use any software to cheat or deceive anyone in anyway whether you benefit or not. You agree that you will not post any software, files or links to other sites except as may be specifically permitted by BrainTrain, and that you will not post any content that contains viruses, corrupted files, or any other similar software or programs that may adversely affect the operation of the Site, or feature of the Site. You further agree that you will not use or distribute any cheat utility, instructions about how to cheat, software or macro programs or applications that allow you or other users to cheat when playing online games available on this Site or elsewhere, nor will you use robots, spiders, or other means to cheat in online games at the Site or otherwise engage in any other type of fraudulent activity with or without personal gain. You agree not to share your passwords or other Account Information with anyone. You may not share or transfer your Account or your Account password or other access information with any other party, temporarily or permanently. You shall bear sole responsibility for all use of your Account and for the confidentiality of your password. You represent that all information submitted to create your Account is accurate and truthful. You understand and fully accept that you are responsible for all your Postings. You understand and acknowledge that User Content is solely your responsibility, and that BrainTrain is not responsible for the information, data, text or other materials that may appear in User Content. Opinions expressed in User Content do not reflect the opinions of BrainTrain, and BrainTrain does not endorse and has no control over User Content. User Content is not necessarily reviewed by BrainTrain prior to posting and BrainTrain makes no warranties, express or implied, as to the User Content or to the accuracy and reliability of the User Content. You acknowledge and understand that BrainTrain may or may not monitor and/or record Users activity with or without notice. Also, BrainTrain may or may not provide Users with a notices of their violations. Notwithstanding the foregoing, BrainTrain does not necessarily monitor any materials posted, transmitted, or communicated to or within the Site. If you believe that something on the Site violates these Posting Rules or otherwise violates these Terms, please communicate any violations you believe may have occurred by reporting it using our Customer Service contact system. You agree and accept that your Account is not owned by you and may be terminated at anytime by BrainTrain, either with or without any cause or reason being communicated to you. You understand and agree that you have no ownership rights in your Account. BrainTrain may cancel your Account and delete all User Content associated with your Account at any time, and without notice, if BrainTrain deems that you have violated these Posting Rules, the Terms, the law, or for any other reason. BrainTrain assumes no liability for any information removed from our Site, and reserves the right to permanently restrict access to the Site or a user Account. You agree that all information you Post will be publically available and that no information you communicate to BrainTrain or User Content that you post on your Account is confidential in anyway. The nature of this Site is interactive and public. By posting User Content, you understand and acknowledge that any materials, ideas or other communications you transmit in any manner and for any reason will not be treated as confidential or proprietary. Furthermore, you acknowledge and agree that any ideas, concepts, techniques, procedures, methods, systems, designs, plans, charts, or other materials you transmit to BrainTrain may be used by BrainTrain anywhere, anytime, and for any reason whatsoever subject to the terms of the Policies Regarding the Ownership of Posted Content and its Licensing Terms, below.

Policies Regarding the Ownership of Posted Content and its Licensing Terms

After posting your User Content to the Site, you continue to retain all ownership rights in such User Content, and you continue to have the right to use your User Content in any way you choose, subject to these Terms and the license described herein (“User Content License”). BrainTrain may delete any User Content that in the sole judgment of BrainTrain violates these Terms or the Posting Rules. The scope of the License you grant BrainTrain described below grants BrainTrain the rights to use the User Content in any manner that it considers appropriate. By displaying, publishing, or otherwise posting any User Content on or through the Site, you hereby grant to BrainTrain a limited, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use, modify, film, re-post in any media, publicly perform, publicly display, reproduce, and distribute such User Content. This license will not terminate and will continue in perpetuity. BrainTrain may though at its sole discretion remove any User Content whenever possible. In posting your User Content you are making the following representations to BrainTrain. You represent and warrant that you own the User Content displayed, published or posted by you on the Site and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of your User Content does not violate the privacy rights, publicity rights, copyrights, patents, contract rights or any other rights of any person or legal entity. You agree to pay for all royalties, fees, legal fees, copyright violation fees and any other monies owed to any other person by reason of any User Content displayed, published or posted by you on the Site. Except for your User Content, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any User Content appearing on this Site.

Indemnification

You agree to indemnify and hold BrainTrain, its parents, subsidiaries, officers, employees, and website contractors harmless from any claims and expenses, including reasonable attorney’s fees, related to your violation of these Terms, including the Posting Rules, or any violations thereof by your dependents.

Privacy/Children
On certain areas of our Site, you may be given the ability to provide us with personally identifiable information. Children under the age of 13 are not permitted to register for an Account or use other interactive features of our Site. Please read BrainTrain’s Privacy Policy for more information about our information collection and use practices.

Third Party Web Sites

This Site may link to other sites not maintained or related to BrainTrain. These links are provided as a service to users and are not sponsored by or affiliated with this web site or BrainTrain, and BrainTrain makes no representations or warranties about the content, completeness, or accuracy of those third party sites. Information you submit at a third party site accessible from this Site is subject to the terms of that site’s privacy policy, and BrainTrain has no control over how your information is collected, used, or otherwise handled.

Restrictions
The Software used in this Site contains copyrighted material, trade secrets and other proprietary material and in order to protect them you agree to not decompile, reverse engineer, disassemble or otherwise reduce the Software to a human perceivable form. You agree not to modify, network, rent, lease, loan, distribute or create derivative works based upon the Software in whole or in part without express written permission from BrainTrain. You also understand that you are not permitted to electronically transmit the Software from one computer to another or over a network or the Internet.

Limited Purpose of the Site and its Software

BrainTrain’s software and the use of this Site is for educational and recreational purposes only. It is not intended to replace any medical treatment or professional advice for any emotional or psychological problems. The products are designed for mental fitness, entertainment and educational purposes, and no medical claims, either expressed or implied, are made for them. These products are not intended to be a substitute for consultation with a health care provider or for appropriate medical treatment for any emotional or psychological problems. They are not a cure for ADD, ADHD, LD or any other cognitive impairment. They are not medical devices, and should not be used for the relief of any medical condition. No claims are made for any specific or general benefits for any one individual using these software tools. These products are not approved for any purpose by the Food and Drug Administration.

Representations, and Limitations of Liability

BrainTrain makes no representations about the reliability of the features of this Site, the Content, User Content, its software or any other Site feature, and disclaims all liability in the event of any service failure. You acknowledge that any reliance on such material and/or systems will be at your own risk. BrainTrain makes no representations regarding the amount of time that any Content or User Content will be preserved.

THIS SITE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THIS SITE OR ANY INFORMATION OR SOFTWARE THEREIN. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL BRAINTRAIN BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THIS SITE, NOR SHALL BRAINTRAIN BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND BRAINTRAIN’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THIS SITE’S RECORDS, PROGRAMS, OR SERVICES. IN NO EVENT SHALL BRAINTRAIN’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION EXCEED FIVE DOLLARS (US $5.00). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

Miscellaneous

Both you and BrainTrain acknowledge and agree that no partnership is formed and neither of you nor BrainTrain has the power or the authority to obligate or bind the other.

Governing Law

Use of this site shall be governed by all applicable Federal laws of the United States of America and by the laws of the State of Virginia. BrainTrain, reserves the right to revise these Terms and Conditions at any time. All users are bound by any such revisions and should therefore periodically visit this page to review binding current Terms and Conditions. This Agreement shall be governed and construed in accordance with the laws of the State of Virginia applicable to agreements made and to be performed in Virginia. Any legal action or proceeding for any purpose concerning this Agreement, the website, or the parties’ obligations hereunder shall be brought exclusively in a federal or state court of competent jurisdiction sitting in Virginia. Any such complaint filed in any jurisdiction apart from the State of Virginia shall be barred. Any cause of action or claim against BrainTrain, with respect to this website must be commenced in the proper forum within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. Failure by BrainTrain, to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. BrainTrain, may assign its rights and duties under this Agreement to any party at any time without notice. This Agreement will be governed by and construed in accordance with the laws of the State of Virginia. These Terms operate to the fullest extent permissible by law. If any provision of these Terms is unlawful, void or unenforceable, that provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

Arbitration
BrainTrain and you agree that in the event of any dispute arising between the parties with respect to the use of this Site, its contents or software that such dispute shall be settled by binding arbitration to be conducted in Chesterfield County, Virginia in accordance with the rules of the Judicial Arbitration and Mediation Service (“JAMS”) applying the laws of Virginia. BrainTrain and you agree that such arbitration shall be conducted by one or more retired judges who are experienced in dispute resolution, that pre-arbitration discovery shall be limited to the greatest extent provided by the rules of JAMS, that the arbitration shall not be conducted as a class action, that the arbitration award shall not include factual findings or conclusions of law and that no punitive damages shall be awarded. BrainTrain and you understand that any party’s right to appeal or to seek modification of rulings in arbitration is severely limited. Any award rendered by the arbitrators shall be final and binding and judgment may be entered on it in any court of competent jurisdiction in Chesterfield County, Virginia. Each party agrees to equally share the costs of the arbitration and to pay their own legal and other costs related to such a dispute.

Export Controls
Software that may be available in connection with this Site (the “Software”) is further subject to United States export controls. No Software may be downloaded from this Site or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.

Complete Agreement

This document constitutes the entire agreement between the parties with respect to the use of the Site, its software and content, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of BrainTrain. These Terms constitute a binding agreement between you and BrainTrain, and is accepted by you upon your use of the Site or your Account. These Terms constitutes the entire agreement between you and BrainTrain regarding the use of the Site and your Account.
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