PLEASE READ THIS END USER LICENSING AGREEMENT (EULA) CAREFULLY BEFORE PROCEEDING. IN ORDER TO USE THIS SOFTWARE ANY INDIVIDUAL, BUSINESS ENTITY, OR FOREIGN GOVERNMENT ENTITY (DEFINED IN THIS AGREEMENT AS THE “USER”) WHO HAS ACQUIRED, BEEN PROVIDED OR PURCHASED ANY BRAINTRAIN SOFTWARE MUST AGREE TO ALL OF THE TERMS OF THIS LICENSING AGREEMENT. ANY UNITED STATES FEDERAL, STATE OR LOCAL GOVERNMENT ENTITY (ALSO DEFINED IN THIS AGREEMENT AS A “USER”) WHO HAS ACQUIRED, BEEN PROVIDED OR PURCHASED ANY BRAINTRAIN SOFTWARE MUST AGREE TO THE TERMS OF THIS LICENSING AGREEMENT, EXCEPT FOR THE EXCLUSIONS IN IT THAT SPECIFICALLY PERTAIN TO THESE UNITED STATE GOVERNMENT ENTITIES. all users who proceed with the installation of any braintrain software on behalf of any OF THE ENTITIES DEFINED ABOVE AS USERS with whom they are employed or represent confirm and warrant that they are authorized by this entity to agree with ALL OF THE TERMS OF THIS LICENSING AGREEMENT. THE INSTALLATON OF THE SOFTWARE BY THE USER ONTO THE USER’S COMPUTER CONSTITUTES FULL AGREEMENT WITH ALL OF THE TERMS OF THIS LICENSE AS SPECIFIED BELOW. THIS IS A LEGAL, BINDING AND ENFORCEABLE CONTRACT BETWEEN THE USER AND BRAINTRAIN, INC. If when installing this software for the first time or upgrading a previous version of the software, the USER and/or any other person allowed by the USER to install software on their computer checks the box agreeing to these license terms and/or loads this software, the USER acknowledges his or her full agreement with all of the terms and conditions of this licensing and use agreement for this BrainTrain software and any previous BrainTrain software purchased. If the USER does not agree to all of the terms and conditions stated below, then the USER should not check the box agreeing to the licensing terms and not load the software. The above requirements for use and installation of the software for all USERS who represent United States federal, state or local governmental entities apply to the fullest extent possible in accordance with the terms of this licensing agreement, but with the following general exception. For purchases by these United States government entities the specific terms of this licensing agreement that are not in accordance with their existing laws are hereby excluded from it.
- License. The installation by any USER of this product on any computer constitutes the user’s acceptance of all terms of this license agreement specified below. The application, demonstration, system and other software accompanying this License, whether on disk, in read only memory, or on any other media (the “Software”) and related documentation are licensed to the USER by BrainTrain, Inc. for a specified period of time that begins on the date of purchase (“Term Software License”). The software may also be licensed for an unlimited period of time (“Perpetual Software License”). Limited use trial versions of the Software may be provided to a USER, but their use is restricted to review and evaluation purposes only. Any use of trial versions of the Software by the USER for any purpose other than to review and evaluate it would constitute a breach of the terms of this licensing agreement by the USER. The USER owns the media on which the Software is recorded, but BrainTrain, Inc. and/or BrainTrain, Inc.’s Licensors retain title to the Software and related documentation. This License allows the USER to use the Software on one computer at a time, unless a multi-use license was purchased. The Software’s use is permissible only during the time period that it is licensed and it will not function fully after the Term Software License has expired. After the Term Software License has expired, the customer’s use of the program will be limited to accessing their own client-related program data. In the case of breach of this software license, the USER agrees to pay all damages, reasonable attorney fees and related expenses incurred by BrainTrain, Inc. in the enforcement of this agreement. The USER’S license rights in the Software are non-transferable. Any license fees paid are non-refundable and all sales of this software license are final, unless specifically stated in writing by BrainTrain. BrainTrain, Inc. reserves the right to change, discontinue, and modify the software product’s features, benefits and functionality at its sole discretion without notice to the USER. USERS agree and understand that the features or benefits of any BrainTrain software product purchased may not remain the same and that any program feature may be revised, require additional fees or be removed at BrainTrain’s sole discretion without prior notice. USERS understand and agree that they will not be entitled to receive any refund or monetary compensation for any changes or removal of any program features in any software updates. If the USER has purchased a home version of any BrainTrain product, this software is licensed solely for non-commercial, personal use and its use in any commercial business or any activity other than personal use is strictly prohibited, whether or not a fee for its use is charged. Professional versions of BrainTrain products are licensed for use in either commercial business activities, research purposes or for personal use. If the USER has purchased a research and/or educational version of any BrainTrain product, this is licensed solely for non-commercial research and/or educational use and its use in any commercial business or activity other than for research and/or educational purposes is strictly prohibited.
- Restrictions. The Software contains copyrighted material, trade secrets and other proprietary material and the USER may not decompile, reverse engineer, disassemble or otherwise reduce the Software to a human perceivable form. The USER may not 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, Inc. The USER may not electronically transmit the Software from one computer to another or over a network, unless given specific written permission by BrainTrain, Inc.
- Termination. The License to use the software for appropriate purposes is effective until terminated. The USER may terminate this License at any time by destroying the Software and related documentation and all copies thereof. This License will terminate immediately without notice from BrainTrain, Inc. if the USER fails to comply with any provision of this License. The USER also agrees that BrainTrain, Inc. has the right to terminate the license at any time in the event that the USER misuses the product or breaches the terms of this licensing agreement. Upon termination the USER must destroy the Software and related documentation and all copies thereof. Termination of this licensing agreement does not void or change any of the terms of this licensing agreement other than the right of the User to continue to use the software.
- Export Law Assurances. The USER agrees and certifies that neither the Software nor any other technical data or hardware devices received from BrainTrain, Inc., nor the direct product thereof, will be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. This agreement includes complying with all export and re-export restrictions and regulations of the Department of Commerce or other United States agency or authority, and not to transfer, or authorize the transfer, of the Products to a prohibited country or otherwise in violation of any such restrictions or regulations.
- Government End Users. If the USER is acquiring the Software on behalf of any unit or agency of the United States Government, then the terms of this licensing agreement are acknowledged by BrainTrain, Inc. to comply with the FAR clause at 12.212(a) and to be consistent with Federal law as specified in the FAR regulations. If the USER is a United States Government entity and BrainTrain, Inc. believes that the USER is in violation of any of the provisions of this agreement, then BrainTrain, Inc. will submit a claim with the contracting officer and seek remedy in accordance with the FAR or other relevant governmental provisions governing such disputes. BrainTrain, Inc. and any USER who is a government agency agree that all disputes shall be resolved in accordance with FAR 52.233.1 and FAR 12.302(b) or other applicable United States governmental regulations pertaining to contractual disputes.
- Limited Warranty on Media and Hardware. BrainTrain, Inc. warrants the media on which the Software is recorded to be free from defects in materials and workmanship under normal use for a period of 90 days from the date of purchase as evidenced by a copy of the receipt. BrainTrain, Inc.’s entire liability and your exclusive remedy will be replacement of the media and/or hardware that is returned to BrainTrain, Inc. or a BrainTrain, Inc. authorized representative with a copy of the receipt. BrainTrain, Inc. will have no responsibility to replace media or hardware damaged by accident, neglect, misuse, poor telephone or electrical circuits, failure of electric power, air conditioning, humidity control, equipment failure, or causes other than ordinary use, nor does it apply to causes beyond BrainTrain’s control. This limited warranty does not cover cable harnesses, batteries, lead wires, adapters, sensors, electrodes or any other consumables sold by BrainTrain. In no event will BrainTrain be liable to the USER for any damages, including any lost profits, lost savings, loss of business information, incidental or consequential damages or any other pecuniary loss arising out of the use or inability to use the product even if Vendor or an authorized distributor has been advised of the possibility of such damages, or any claim by any other party (including by those relying on the data or information from use of the product). ANY IMPLIED WARRANTIES ON THE MEDIA OR HARDWARE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO 90 DAYS FROM THE DATE OF DELIVERY. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY IN THE UNITED STATES FROM STATE TO STATE.
- Limited Purpose of Software. BrainTrain, Inc.’s software products are for educational and recreational purposes only. They are not intended to replace any medical treatment, medical diagnosis or professional advice for any emotional or psychological problems. The products are designed for cognitive skill development, mental fitness and/or 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 medical device for the cure or diagnosis of ADD, ADHD, LD or any other cognitive, medical or psychological impairment. Many of these products are best used within a comprehensive educational training program after an evaluation by a qualified professional. They are not medical devices, and should not be used for the relief or diagnosis of any medical condition. The scientific research completed using some of BrainTrain’s software has shown significant clinical improvements in cognitive functioning for a number of people; however, specific or general benefits for any one individual using these software tools can never be guaranteed. These products are not approved for any purpose by the Food and Drug Administration. The SmartMind Neurofeedback System is classified as a Class II 510(k) exempt medical device by the FDA. It is intended to be used by professionals for relaxation training and stress management. You agree not to use this product in any environment as a training method or component involving life support, operation of a motor vehicle or machinery, safety devices or systems, military or nuclear applications, or in any other application in which the potential failure or use of the software or any hardware devices used with it in any way could create a situation where personal injury or death may occur. The USER also agrees not to use the software in any way which would violate federal, state, local or foreign laws.
- Warranty Disclaimer. THE USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF ANY BRAINTRAIN PRODUCT IS AT THE USER’S SOLE RISK. THE SOFTWARE AND RELATED DOCUMENTATION ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND AND BRAINTRAIN, INC. AND BRAINTRAIN, INC.’S LICENSOR(S) (FOR THE PURPOSES OF PROVISIONS 6, 7 AND 8, BRAINTRAIN, INC. AND BRAINTRAIN, INC.’S LICENSOR(S) SHALL BE COLLECTIVELY REFERRED TO AS “BRAINTRAIN, INC.”) EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BRAINTRAIN DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET THE USER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, BRAINTRAIN DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BRAINTRAIN OR A BRAINTRAIN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT BRAINTRAIN OR A BRAINTRAIN AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. BRAINTRAIN DOES NOT WARRANT OR GUARANTEE THAT THE FEATURES, BENEFITS AND FUNCTIONALITY OF THE SOFTWARE WILL REMAIN THE SAME IN FUTURE UPDATES. THE USER UNDERSTANDS AND AGREES THAT ANY FEATURE MAY CHANGE AT THE SOLE DISCRETION OF BRAINTRAIN AND THAT THE USE OF ANY FEATURE OR FUNCTION OF THE PROGRAM MAY BE DISCONTINUED OR MODIFIED AT BRAINTRAIN’S SOLE DISCRETION WITHOUT NOTICE TO THE USER. SOME UNITED STATE FEDERAL, STATE OR LOCAL GOVERNMENT ENTITIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
- Limitation of Liability. UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE SHALL BRAINTRAIN BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE THE SOFTWARE OR RELATED DOCUMENTATION, EVEN IF BRAINTRAIN OR A BRAINTRAIN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME UNITED STAT FEDERAL, STATE OR LOCAL GOVERNMENT ENTITIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO THE USER. NO ACTION MAY BE BROUGHT OR ARBITRATION DEMANDED UNDER THIS AGREEMENT AT ANY TIME MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION FOR ARBITRATION AROSE. IN NO EVENT SHALL BRAINTRAIN, INC.’S TOTAL LIABILITY TO THE USER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) EXCEED THE AMOUNT PAID BY THE USER FOR THE SOFTWARE.
- Non-Disparagement Clause. In purchasing any BrainTrain, Inc. product all USERS agree that they will not disparage or comment negatively about BrainTrain, Inc., its products, officers, or employees. Disparagement in this clause includes either directly or indirectly, in any manner, expressing, transmitting, texting, posting on any website or blog, writing, or otherwise communicating in any way (or causing, assisting, supporting or participating with another person in any of the foregoing) any remark, comment, message, information, declaration, communication or other statement of any kind, whether verbal, in writing, electronically transferred or otherwise, that might reasonably be construed to be derogatory or critical of, or negative toward, BrainTrain, Inc. or any of its officers, products, or employees (collectively, the “Company Representatives”) or to malign, harm, disparage, defame or damage the reputation or good name of BrainTrain, Inc., its business, products or Company Representatives. It is also agreed and understood that the terms of this clause apply after any USER acquires, is provided or purchases any BrainTrain, Inc. product whether or not the product is installed, used, returned or is ceased being used. In addition, it is also agreed by you that the occurrence of disparagement is recognized to occur whether or not any facts or information communicated are proven to be true and that the determination of disparagement is not dependent in any way on whether or not BrainTrain, Inc., its officers or employees have incurred any actual damages, identifiable financial losses or expenses related to it. No aspect of this clause shall prevent the USER from making any truthful statement in connection with any legal proceeding or investigation by the Company or any governmental authority. It is recognized by the USER and BrainTrain, Inc. that it would be difficult to determine the actual damages related to potential loss of revenue and good will, as the pecuniary effects of disparaging communication are not easily determined or calculated. This is recognized by the USER as true, given that the impact of any act of disparagement could last several years and its monetary effect is not easily determined, because it is likely to discourage an unknowable number of potential customers from engaging in business with BrainTrain, Inc. and purchasing its products. Consequently, the USER agrees that if it is ruled in arbitration that the USER has disparaged BrainTrain, Inc., that the USER will pay BrainTrain, Inc. all reasonable attorney fees, costs and expenses, including BrainTrain’s share of any arbitration overhead costs and fees. In addition, USERS agree that the following liquidated damage are accepted by them as fair and reasonable and would not act as a penalty: three thousand five hundred dollars ($3,500) for each proven incidence of disparagement. It is acknowledged by USERS that they understand and fully accept the above definition of disparagement, the reasonable liquidated damage determination and the terms specified in this non-disparagement clause. The USER’S understanding includes that this clause is a material term of this EULA, that the USER will have available the opportunity to use arbitration to settle and resolve any disputes with BrainTrain, Inc. and that the USER’S failure to accept the terms and conditions of this clause would result in BrainTrain, Inc.’s refusing to license the use of its products to the USER.
- Controlling Law and Severability. This License shall be governed by and construed in accordance with the laws of the United States and the State of Virginia, as applied to agreements entered into and to be performed entirely within Virginia, unless the USER is a United States Government entity in which case the current controlling law will be in accordance with the regulations and laws of that United States Government entity.
- Jurisdiction. In the event of any legal action relating to this License Agreement that is not in accordance with the terms of Arbitration specified below, the USER consents to the exercise of jurisdiction over it by a state or federal court in Chesterfield County, Virginia and further agrees that such court shall have exclusive jurisdiction over any such action, unless the USER is a United States Government entity in which case the current controlling law will be in accordance with the regulations and laws of that United States Government entity. If for any reason the court of jurisdiction finds any provision of this License, or portion thereof, to be unenforceable, that provision of the License shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this License shall continue in full force and effect.
- Arbitration. BrainTrain, Inc. and the USER agree that any dispute arising between the parties with respect to this License Agreement 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, unless the USER is a United States Government entity, in which case the current controlling law will be in accordance with the regulations and laws of that United States Government entity. BrainTrain, Inc. and the purchaser agree that such arbitration shall be conducted by one or more retired Virginia Circuit Court judges who are experienced in dispute resolution selected by BrainTrain, Inc., 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, Inc. and the USER understand that any party’s right to appeal or to seek modification of rulings in arbitration is subject to the Virginia Uniform Arbitration Act. The estimated contractual overhead costs and fees of the arbitration of one thousand dollars ($1,000) must first be paid into an Escrow account by either party initiating the arbitration proceedings. Once the initiating party has deposited $1000 into the Escrow account, it is required and agreed to that the other party must deposit this same amount. The final arbitration costs will be borne equally by both parties. Unless it is proven that the USER has breached the non-disparagement clause of this agreement, both parties agree to pay their own legal and other costs related to such a dispute. 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. All arbitration proceedings shall, to the extent permitted by law, be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
- Technical Support. For Perpetual Software Licenses, BrainTrain, Inc. will provide technical support for the Software at no charge for the specified period of time declared after the date that item was initially purchased. After this period has expired, the USER will be required at the sole discretion of BrainTrain, Inc. to either pay a license renewal fee in order to continue to purchase additional BrainTrain products (including tests, reports or other add-ons) and receive any technical support needed. This technical support fee for Perpetual Software Licenses is subject to change without notice and must be paid in a timely manner. The USER understands and agrees that their failure for any reason whatsoever to pay the fee for continuing technical support fee will result in their inability to purchase additional products, their loss of all technical support services and that this technical support once lapsed cannot be reinstated. Thus, all USERS agreed and understand that their failure to continuously maintain BrainTrain’s technical support service will require them to re-purchase the latest version of the software product at the current retail price in order to receive any needed additional products or technical support services. This repurchase policy does not apply to GSA contracted products purchased by United State government entities. BrainTrain’s obligation for providing technical support and updates will only continue for the time period that the current support has been purchased. The renewal of any technical support plan, including any software updates, will be at BrainTrain’s sole discretion. For Term Software Licenses, either BrainTrain, Inc. or a third party will provide technical support for the Software at no charge for the period of the license. After the Term Software License has expired, USERS may be able to procure a new software license at the current price and continue to receive technical support and updates at the sole discretion of BrainTrain for the duration of the new term license purchased. Technical support includes any and all support or technical services provided by BrainTrain, Inc. or a third party, including but not limited to resolving conflicts with a computer’s operating system and its components, helping to correct for equipment failures such as hard drive or interface card malfunctioning, re-registration of software on a new or rebuilt computer, and transferring the license to another computer. All hardware is warrantied for a period of ninety (90) days from the date of purchase. Misuse or abuse of the hardware is not covered during this warranty period. If a problem occurs after this ninety (90) day period, there is a fee associated with the repair or replacement of any part of the hardware.
- Complete Agreement. This License constitutes the entire agreement between the parties with respect to the use of the Software and related documentation, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by a duly authorized representative of BrainTrain, Inc. Any updates, modifications or changes to this End User License Agreement will be posted on the BrainTrain website and incorporated herein. USERS agree that it is that it is their responsibility to check BrainTrain’s website on a monthly basis to determine if the BrainTrain Product End User Licensing Agreement (EULA) has been revised since the date of their product installation.