BRAINER TERMS AND CONDITIONS
Welcome to brainer.io, which is owned and operated by K2 Analytics, Inc., doing business as “brainer” (“brainer,” “we,” or “us”). By visiting or accessing www.brainer.io or any of its related applications, dashboards, or platforms (individually and collectively, the “Website”), or by using or purchasing (either for yourself or on behalf of a client) any services (“Services”) from brainer, you are agreeing to the following terms and conditions (the “Terms” or “Agreement”).
The term “You” in this Agreement means any person or entity who accesses the Website, uses any Services.
YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OF AGE, AND THAT, IF YOU ARE ACCESSING THE WEBSITE ON BEHALF OF BRAINER OR ANOTHER ENTITY, YOU ARE AUTHORIZED TO ACT ON BEHALF OF SUCH COMPANY OR OTHER ENTITY AND TO BIND IT TO THE TERMS SET FORTH HEREIN.
IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED TO USE THIS WEBSITE.
brainer’s sales of Services are made pursuant to these Terms. If brainer receives an order for Services (defined below) or other document from you that limits, or purportedly limits, acceptance to its terms or states that brainer’s acknowledgement, delivery of Services, or other act or failure to act constitutes acceptance of any offer on the terms of the purchase order or other document, any responding document sent by brainer which expresses acceptance or confirms the order is expressly conditioned on your assent to the terms set forth herein and in such transaction, and in such responding document. Such assent shall be deemed given when the you accept delivery of any of the Services described in any transaction summary or invoice. brainer hereby objects to, and rejects, any term contained in your purchase order or other document if the term is different from or in addition to the terms herein.
- Services, Term, and Fees. We offer several different Services. These Services may include, but are not limited to: (1) the promotion and facilitation of collecting and publishing feedback, both directly and indirectly; (2) the use of brainer’s platform and dashboard; and (3) other services. We may, at our discretion, periodically change the description or content of our services in order to reflect changes to the service offerings and features, including, without limitation, to reflect enhanced capabilities, changes in the service terms, changes in regulatory requirements, and/or any other modification intended to improve the efficacy of the services or better address a perceived need among our customers. The initial term for any Service is one year, unless terminated for material breach by either party. If you terminate during the first year for any reason other than our material breach (and our failure to cure after 30 days’ notice), you will still be responsible for the fees due for the entire year. After the initial term of one year, this Agreement automatically renews for 30 day periods until terminated by either party by giving notice at least 30 days prior to the end of the then-current term. Fees for Services (“Fees”) are payable as provided on any sign-up document. If payment is not received when due, you agree to pay 5% annual interest on any overdue amount, calculated on a per-day 360 day basis. You understand and accept that, unless otherwise expressly stated on the applicable order, our services are subscription services that operate on an auto-renewal basis such that your credit card, debit card, electronic payment, or other method of payment (“Accounts”) will be assessed the specified Fees at regular intervals based on your subscription program (annually, quarterly, or monthly). The Fees will be paid in advance.
If payments cannot be processed or are returned for any reason, we reserve the right either to suspend or terminate your order, thereby terminating all further obligations by the brainer. All applicable taxes which, as now existing or implemented by future law, brainer may be required to pay or collect with respect to the sale, purchase, processing, or use of any of the Services shall be paid by you to brainer or the applicable taxing authority upon demand by brainer. To the extent you fail to remit payment of taxes in accordance with the preceding sentence, you hereby authorize brainer to charge your credit card, or other payment account on file, the full amount to be paid to applicable taxing authorities, to the extent that such taxes may be lawfully collected from or charged to the account of brainer. BRAINER SHALL NOT BE OBLIGATED TO, BUT MAY IN ITS DISCRETION, MAKE SUCH DEMAND AS PART OF BRAINER’S TRANSACTION RECEIPT OR INVOICE, AND IN ANY EVENT, YOU SHALL AT ALL TIMES BE SOLELY RESPONSIBLE FOR THE REPORTING AND PAYMENT OF ALL APPLICABLE TAXES IN CONNECTION WITH THE PURCHASE OF SERVICES.
- Sign-Up documents. You may sign up for any Services either in person, online, or over the phone, and any record evidencing such sign-up shall be considered a sign-up document (“Sign-Up Document”). When you sign up, either in writing or orally, you agree to these Terms. If there is any conflict between your Sign-Up Document and these Terms, the Terms of the Sign-Up Document shall govern.
- Communications. When you visit the Website or send e-mails to us, you are communicating with us electronically, and you consent to also receive communications from us electronically. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- Received Materials. Any reviews, comments, materials, or letters sent by you to brainer, including, without limitation, questions, comments, suggestions, criticisms or the like (“Received Materials”), will be deemed by brainer to be non-confidential and free of any claims of intellectual property or other personal rights. We shall have no obligation of any kind with respect to such Received Materials, and we will be free to reproduce, use, disclose, exhibit, display, transform, edit, abridge, create derivative works from and/or distribute the Received Materials without limitation or restriction. Furthermore, brainer is free to use or sell any ideas, concepts, know-how, or techniques contained in any communication you send to us for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information or ideas, (including in connection with the sale, acquisition, or merger of brainer or of all or substantially all of brainer’s assets) without compensation or any other obligations to anyone, including you.
- Uploaded Materials. In the course of your use of the Website, you or your clients or patients may upload reviews, photos, stories, experiences, or other materials (“Uploaded Materials”). By providing the Uploaded Materials or allowing them to be provided, you agree that we may use the Uploaded Materials for the purposes of this Agreement. brainer shall have no obligation to compensate you for the use of the Uploaded Materials or derivative works created from the Uploaded Materials. Uploaded Materials, together with Received Materials, collectively comprise “User Content.”
- Warranty. By providing any User Content, the individual posting the information warrants and represents that he or she has sole ownership of such User Content and that they are free of any intellectual property claims by any third party. He or she also represents that he or she is in full compliance with all applicable state and federal laws, rules, and regulations. In particular, and without limitation, you warrant and represent that your use of the Services and Website will not violate any obligation with respect to the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, and any other applicable federal or state law and amendments thereto. If monitoring and managing your online reviews or ratings is included in the services you order, you represent and warrant that (a) you are authorized to provide us with any customer, patient, and user information that you provide to us in connection with such services (the “Reviewer Information”), including any personally identifying information of those parties; (b our possession and/or use of the Reviewer Information on your behalf in connection with the Services will not violate any contract, statute, or regulation; and (c) any content that you and/or your authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, are the original work of your authorship, and will only concern you and the goods and/or services that you provide, (d) you and/or your authorized representative(s) will only request reviews via the brainer.io platform from actual paying customers. We will not be held liable for any consequences of false and/or inaccurate content published to an online review or rating websites through the brainer.io platform.
- Waiver of Restrictions. Various state and federal laws may restrict the use of personal information similar to the information you provide on the Website. By providing information, the use and collection of which may be restricted by law, you waive any protections or restrictions related to such information to the fullest extent permitted by law.
- Use by Children Under 13. The Child Online Privacy Protection Act (“COPPA”) restricts website operators from collecting or using any personal information from individuals under the age of 13. In order to exceed the compliance requirements of COPPA, we do not target children under 18, nor do we knowingly collect any information from children under 18 or allow plug-ins or other services to collect such information without express written consent from their parents or guardians. We also prohibit children under 18 from posting any information on the Website without written parental consent. By using any of the Services or posting any information about yourself, you warrant that you are at least 18 years old. In addition, you may not post any photos or other information about any individual who is under 18 without obtaining written parental consent. If you become aware of any materials posted by a child under age 18, please notify us immediately.
- Digital Millennium Copyright Act. If you are a copyright owner or an agent thereof and believe that any Content, including without limitation any User Content, infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The brainer’s designated Copyright Agent to receive notifications of claimed infringement is: Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, 3556 E. Russell Road, 2nd Floor, Las Vegas, NV 89120, Attn: Royi Moas, Esq. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to the brainer’s customer service at firstname.lastname@example.org. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
- License and Restrictions. Subject to the provisions of this Agreement, including any payment obligations, brainer grants you a limited, non-exclusive, non-transferable right to access the Website and to use the Services. brainer retains all intellectual property rights to its intellectual property and the User Content. The Website and Services involve information, methods, and processes that contain valuable proprietary information and trade secrets of brainer, embodying substantial creative efforts and confidential information, ideas, and expressions. You acknowledge that you do not acquire any ownership rights by using the Website, the Content, or User Content provided by any third party. Any rights not expressly granted herein to you are hereby reserved by brainer. The provisions of this section shall survive the termination of this Agreement. Further, you agree that in connection with your use of the Website, you will not do any of the following:
- Circumvent, disable or otherwise interfere with security-related features of the Website or features that prevent or restrict use or copying of any Content, or enforce limitations on use of the Website or the Content.
- Copy, reproduce, republish, upload, post, transmit, or distribute in any way any Content without brainer’s written permission, other than as expressly allowed by brainer.
- Transmit any software or other materials that contain any viruses, worms, Trojan horses, defects, date bombs, time bombs or other items of a destructive nature.
- Use any data scraping, mining, robots, spiders, or similar data gathering and extraction methods within the Website or in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents without the brainer’s prior written consent.
- Modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Website or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Website.
- Use any meta tags or any other “hidden text” utilizing the brainer’s name or any substantially similar name without the brainer’s express written consent.
- Request more than 500 pages of the Website in any twenty-four hour period, whether alone or acting in concert with a group of individuals.
- Request more than 10 media or other documents available for download from the Website in any twenty-four hour period, whether alone or acting in concert with a group of individuals.
- Take any action that imposes or may impose (in brainer’s sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure.
- Duplicate or create multiple user accounts in an attempt to circumvent our
security and privacy measures and policies.
- “Frame” or “mirror” any part of the Website.
- Remove any copyright, trademark or other proprietary rights notices contained on the Website.
- Use the Website or Content for any unlawful purpose.
- Post Received Materials on or through the Website that violates the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity.
- Post User Content on or through the Website that includes any “Prohibited Content” as defined below. “Prohibited Content” includes, but is not limited to, any User Content that: (i) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (ii) is bigoted, hateful, or racially or otherwise offensive; (iii) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; (iv) is harmful or can reasonably be expected to be harmful to any person or entity; (v) is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them; (vi) infringes or violates any right of a third party including right of privacy, right of publicity, copyright, patent, trademark, service mark, trade secret or other proprietary or contractual rights; (vii) is commercial, business-related or solicits or advertises or offers to sell any Services, whether or not for profit; (viii) contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Website or any connected network, or otherwise interferes with any person or entity’s use or enjoyment of the Website; (ix) does not generally pertain to the designated topic or theme of the relevant application, public forum or blog; (x) violates any specific restrictions applicable to the application, public forum or blog; or (xi) is antisocial, disruptive, or destructive, including “spamming,” “flooding,” and “trolling” as those terms are commonly understood and used on the Internet.
- Your Account Data: You are responsible for maintaining the confidentiality of any account information, including your login and password, and for restricting access to your computer and the Services, and you agree to accept responsibility for all activities that occur under your account or password, including any photos or information posted by clients or patients. brainer reserves the right (but does not accept any obligation) to refuse service, terminate accounts or remove or edit content in its sole discretion. You are also solely responsible for the accuracy and currency of the data entered into the Services under your user account.
- DISCLAIMER OF LIABILITY AND WARRANTY.
No representations or warranties, express or implied, are given regarding the Services or your use of the Website. brainer’s liability is limited only to amounts actually paid by you to the brainer. If you are not satisfied with our service please contact our customer service department at email@example.com. Without limiting the generality of the foregoing, you agree that use of the Website, the Content, and the Services, is entirely at your own risk. brainer assumes no responsibility for errors or omissions in the Services, the Website or its content, including any documents and user content, or any third party website.
Your access and use the Website, the Services, Content is at your own risk. Subject only to any express warranty herein, the products, services, website and content are provided “AS-IS,” “WHERE IS,” and “AS AVAILABLE” without warranty of any kind, oral, written, statutory, express or implied, including, but not limited to, warranties of quality, accuracy, functionality, performance, merchantability, security, reliability, completeness, or timeliness of any of the Website, the Services, and Content.
To the fullest extent permitted by law brainer disclaims any warranties for and does not assume any responsibility for any incompleteness, errors, security, reliability, timeliness, viruses, harmful components or effects, vulnerabilities, bugs, problems, omissions, inaccuracies or other limitations in, or interruptions in the operation of the website, the content, the services, the Services or any other information, text, graphics, links or other items contained within the Website’s Content or any third party website, or any other Services or Products received or purchased through or advertised on the Website, or accessed through any links on the Website.
All express and implied warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights are expressly disclaimed to the fullest extent permitted by law. brainer makes no commitment to update the information, including the Services and Products contained in, and sold through, the website. You acknowledge that you are responsible for obtaining and maintaining all telephone, computer hardware and/or other equipment needed to access and use this website, and all charges related thereto. Your use of this website, the content and/or any of the Services or Products or other products provided through the Website or any third party website are entirely done so at your own risk.
More specifically with respect to the Products and other products sold via the Services (or otherwise on or through the Website or any third party website linked from the Website), brainer expressly disclaims all warranties, express, implied or statutory with respect to the Products, including, without limitation, warranties of merchantability and fitness for a particular purpose and any warranties arising from trade usage, course of dealing or course of performance. Any performance estimates described in any of brainer’ written or electronic or magnetic media proposals or quotes or quotations, are only estimates and are not intended as express warranties. Any samples provided by brainer for your use, and any descriptions, illustrations or other information in trade literature, brochures or other documentation or electronic media shall not be construed as warranties in any respect, and any failure to conform with such samples, descriptions, information, or illustrations shall not constitute any breach of these Terms. No sales personnel, employees, agents or representatives of brainer and no third parties are authorized to make any representation, warranty or covenant, whether in writing or orally, on behalf of brainer.
By placing an order with brainer, you hereby affirm that you have not relied upon the skill or judgment of brainer or any of brainer’s agents, employees or representatives to select or furnish goods or materials for any particular purpose, and the sale is made without any warranty by brainer that the material is suitable for any particular purpose.
EXCLUSIVE WARRANTY AND PROCEDURE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, THE FOREGOING PROVISIONS OF SECTION 14 AND THE PROVISIONS OF SECTION 15 BELOW SHALL NOT APPLY WITH RESPECT TO (AND SOLELY WITH RESPECT TO) BRAINER’S RETURN OR REPLACEMENT WARRANTY SET FORTH AS FOLLOWS IN THIS SECTION 14, WHICH RETURN OR REPLACEMENT WARRANTY SHALL SERVE AS YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES OR ANYTHING ELSEPURCHASED ON THE WEBSITE OR VIA THE SERVICES.
brainer warrants that all Services, at the time of delivery by brainer, shall reasonably conform to any specification set forth on the face of brainer’s delivery receipt or invoice and shall conform to the description contained in the description of such Services furnished by brainer on the webpage on which a Transaction is initiated. brainer’s warranty is limited to a period of thirty (30) days from the date of purchase of the Services or the expected life of the purchased Services, whichever is shorter. The Services shall be subject to tolerances and variations consistent with standard industry practices. brainer does not warrant against, and this limited warranty does not apply to, any non-conformity to the extent that such non-conformity results from damage, misuse, abrasion, negligence, accident, tampering, or any other cause affecting the Services after delivery of such Services. If any defect in material or workmanship is discovered by you during the applicable warranty period in any of the Services, as determined by brainer’s inspection of the non-conforming Services, your sole and exclusive remedy shall be as set forth in the following paragraph.
You shall have thirty (30) days from the date of purchase of the Services to inspect the Services to determine whether the Services conform to the transaction details in the manner set forth in the preceding paragraph. You must assert any claim for the foregoing within such thirty (30) day period by furnishing brainer with detailed written information of such damage, nonconformity (“Notice of Rejection”). Conditioned upon such Notice of Rejection, brainer will, at brainer’s option and as your exclusive remedy, (i) replace the Services that are defective (the “Nonconforming Services”) with new Services at the time of delivery, (ii) repair the Nonconforming Services, if applicable, or (iii) refund the purchase price allocated to the Nonconforming Services. In the event inspection and a Notice of Rejection are not made within such thirty (30) day period, you shall be deemed to have accepted the Services. No returns can be made without the prior authorization of brainer and a pre-assigned return authorization number issued by brainer. All returns are subject to inspection and acceptances by brainer. When returns are accepted, they are subject to a handling and re-inspecting charge to be determined by brainer. All returns shall be in accordance with brainer’s specific shipping instructions.
You must immediately discontinue use of any item claimed to be defective. No charge by you for labor or expense required to repair defective material or occasioned by it will be allowed.
The return policy set forth in this Section 14 may be supplemented or superseded by any brainer return policy separately posted on the Website; provided however, that to the extent such separately posted policy does not supersede the terms of this Section 14, this Section 14 shall still be in full force and effect.
Changes, Misprints, Errors And Cancellations. Subject to applicable law, we: (i) reserve the right to change the Services advertised or offered for sale through the Website, the prices or specifications of such Services, and any promotional offers and any other Content at any time and from time to time without any notice or liability to you or any other person; (ii) cannot guarantee that Services advertised or offered for sale on the Website will be available when ordered or thereafter; (iii) reserve the right to limit quantities sold or made available for sale; (iii) do not warrant that Content (including without limitation product descriptions or photographs) are accurate, complete, reliable, current or error-free; and (iv) reserve the right to cancel, to terminate or not to process orders (including accepted transactions) where the price or other material information on the Website is inaccurate or when we recognize abuse of our policies. If we do not process an order for such reason, we will advise you that the order has been canceled and will either not charge you or will apply credit to the payment type used in the order. If we are legally required to collect sales tax on Services you order, the tax amount will be added automatically to your purchase price. On rare occasions, an error in our state sales tax database may cause the sales tax charge to be incorrect. If this happens, at any time up to two years from your date of purchase you may contact us for a refund of tax overcharges. This right to a refund is your exclusive remedy for sales tax errors.
Delivery dates for any Services are approximate, are provided to you for the convenience of both you and brainer, and shall not be binding upon brainer or considered material to the performance of these Terms. Shipping schedules and shipping commitments are based upon current production capabilities, material availability, and inventory, and may be changed by brainer at brainer’s option, as conditions and circumstances may require.
- LIMITATION ON LIABILITY. Under no circumstances shall brainer, its affiliates, officers, directors, advisory board members, employees, shareholders, members, managers, licensors, suppliers, advertisers, sponsors, attorneys or agents be liable to you or any third party under any contract, negligence, strict liability or other theory arising out of or relating in any way to the Website, any Services, and/or any Content, including without limitation any User Content, contained in the Website, or any other linked website or any Product or Service purchased through the Website or any other site, for any direct, indirect, incidental, punitive, special, consequential or exemplary damages (even if brainer has been advised of the possibility of such damages), including without limitation, damages for loss of business, loss of data or lost profits) resulting from any aspect of your use of any Services, or the Website, whether the damages arise from use or misuse of any Services, or the Website, from inability to use any Services, or the Website, or the interruption, suspension, modification, alteration, or termination of the Website or the Services. Such limitation shall also apply with respect to damages incurred by reason of other services or products received through or advertised in connection with the Website or the Services or any links on the Website, as well as by reason of any information received through or advertised in connection with the Website or the Services or any links on the Website. These limitations shall apply to the fullest extent permitted by law. If your use of Content from this Website results in the need for servicing, repair or correction of equipment or data, you assume any costs thereof.
SUBJECT TO SECTION 14 ABOVE WITH RESPECT TO ANY SERVICES, TO THE EXTENT THAT THE FOREGOING LIMITATIONS ON LIABILITY IN SECTION 15 ABOVE ARE LIMITED OR RESTRICTED BY LAW, YOUR SOLE AND EXCLUSIVE REMEDY AND BRAINER’S ABSOLUTE LIMIT OF LIABILITY IN CONNECTION WITH ANY LAWSUIT, CLAIM OR CAUSE WHATSOEVER DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF OR RELATING IN ANY WAY TO THE WEBSITE, THE SERVICES, AND/OR ANY CONTENT, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY OF RECOVERY, SHALL IN ALL CASES BE STRICTLY LIMITED TO THE PRICE PAID BY YOU DIRECTLY TO BRAINER IN CONNECTION WITH SUCH ACCESS TO OR USE OF THE WEBSITE, THE SERVICES, AND/OR ANY CONTENT.
You acknowledge and agree that, if the limitations of liability set forth herein are limited or restricted by law, the exclusive remedy set forth in Section 14, as applicable, shall be your sole remedy even if such remedy fails in its essential purpose for any reason whatsoever, and in no event shall brainer be liable for any direct, indirect, incidental, punitive, special, consequential or exemplary damages (even if brainer has been advised of the possibility of such damages), to you or any third party.
brainer shall not be liable for any failure to perform in accordance with an order or transaction (or any other order for goods or services), including, without limitation, failure to deliver the Services caused for any reason, in whole or in part, beyond brainer’s reasonable control, including, but not limited to, production schedules of brainer’s suppliers, unavailability of materials, labor disturbances, acts of God, earthquake, fire, flood, weather, terrorism or transportation difficulties.
- Indemnity and hold harmless. You agree to defend, indemnify, and hold harmless brainer from and against any losses, claims, judgments, damages, and settlements, including but not limited to third-party claims, which arise out of or are related in any way to (1) your use of or reliance upon the Website, the Services, , or reviews or other information provided by brainer, to plan or carry out any activity, including but not limited to choosing a dentist or other professional, (2) a claim that the User Content that you provide infringe upon any intellectual property or privacy rights of any third party, (3) any claim of a governmental entity or other party that you have violated any law, rule, or regulation, and (4) any breach by you of the obligations, representations, and warranties made by you in this Agreement.
YOU ACKNOWLEDGE THAT BRAINER HAS SET ITS PRICES AND PROVIDED ACCESS TO OR USE OF THE WEBSITE, THE SERVICES, DOCUMENTS OR TOOLS AND/OR ANY CONTENT IN RELIANCE ON THE TERMS SET FORTH HEREIN IN SECTIONS 14-16, AND THAT THE SAME FORM AN ESSENTIAL BASIS UPON WHICH THESE TERMS ARE ESTABLISHED, AND UPON WHICH BRAINER HAS PROVIDED TO YOU ACCESS TO OR USE OF THE WEBSITE, THE SERVICES AND/OR CONTENT. YOU AGREE THAT THE SECTIONS 14-16 WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
YOU AGREE THAT YOUR USE OF OTHER INTERNET WEBSITES AND RESOURCES, INCLUDING WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, SERVICES, OR ANY OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEBSITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
- Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without reference to the United Nations Convention on the International Sales of Goods. The Parties hereby submit to the exclusive personal jurisdiction of the state and federal courts located in the State of Nevada.
You agree that 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 Website, the Content, any User Content, the Services and/or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. You also agree that the Terms shall not be construed against the drafting party, i.e., brainer.
EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THESE TERMS. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS AGREEMENT.
YOU AND BRAINER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Further, unless both you and brainer agree otherwise, the trier of fact may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
In addition, in the event of a breach of these Terms by you, the brainer will, in addition to all other remedies available to it, be entitled to equitable relief by way of a temporary restraining order, or preliminary or permanent injunction and any other legal or equitable remedies. This provision will not be construed as a waiver of the rights which the brainer may have for damages under these Terms or otherwise, and all of the brainer’s rights and remedies will be unrestricted.
- Attorney Fees. In case of an action to enforce any rights or conditions of the Terms, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
- Entire Agreement, Amendment. The Terms are a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing signed by both parties. Notwithstanding the foregoing, we may from time to time offer participation in promotional offers, contests, and sweepstakes on our Website. Your participation in these offers, contests, and sweepstakes is governed by the express rules applicable to each such offer, contest or sweepstakes. Without limitation, this includes all promotions specific to wireless devices.
- Non-Waiver. No waiver of any provision of the Terms shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of the Terms shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
- No Third-Party Beneficiaries. Nothing in the Terms, express or implied, is intended to confer on any person, other than the parties to the Terms, any right or remedy of any nature whatsoever.
- Headings. The headings used in the Terms are for ease of reference only. They are not intended as a complete re-statement of the matters contained under each heading, and you acknowledge that you have read and understood all the text of this Agreement, and not just the headings.
- Severability, Binding Effect. If any provision of the Terms shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of the terms shall not be impaired. The Terms shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and assigns.
- Force Majeure. brainer will not be liable for, or be considered to be in breach of or default under the Terms on account of, any delay or failure to perform as required by the Terms as a result of any cause or condition beyond brainer’s reasonable control.
- Linking Policy. If you link to this Website, we require that you follow these guidelines. You may link only to the homepage, and the link must be in plain text, unless otherwise approved in writing by an authorized representative of brainer. The link to this website must not damage, dilute or tarnish the goodwill associated with any brainer names and/or intellectual property, nor may the link create the false appearance that your website and/or organization is sponsored, endorsed by, affiliated and/or associated with brainer. You may not “frame” this Website or alter its intellectual property or material in any other way. You may not link to the Website for purposes of harming the Website’s ranking in search engines. You agree that if brainer requests that you remove a link to the Website for any reason, you will do so immediately without charge to brainer. If you fail to remove any such link after request, you agree to pay brainer’s costs incurred in enforcing this provision.
- Inaccuracy. From time to time there may be information on our Website that contains typographical errors, inaccuracies, or omissions. We may correct errors, inaccuracies, or omissions and change or update information at any time without notice. We apologize for any inconvenience this may cause you.
- Termination of Use. Notwithstanding anything contrary in these Terms, we reserve the right, without notice and in our sole discretion, to suspend or terminate your ability to use the Website (which would include deleting or deactivating your account, blocking your email or IP address, and/or blocking or preventing your future access to and use of the Website). You agree that brainer shall not be liable to you or any third-party for any suspension or termination of your access to the Website. Further, you agree not to attempt to use the Website after said suspension or termination unless you have received prior written permission from brainer. Upon any termination, you must promptly destroy all Materials downloaded or otherwise obtained from this Website, as well as all copies of such Materials, whether made under this agreement or otherwise.
- Subscription Cancellation Policy. This Section is expressly subject to brainer’s termination right otherwise set forth herein. Upon purchase of a subscription for Services for a specific term (in each case, a “Subscription”), you will automatically be billed for the duration of the term of such Subscription. You are responsible for all fees in connection with the Subscription, as all sales are final and brainer offers no refunds. Notwithstanding the foregoing, if your Subscription expressly contains an early opt-out provision, you may cancel your Subscription in compliance with such early opt-out provision. To cancel your Subscription after or at the conclusion of its set term, or at a permitted early opt-out window, please provide at least fourteen (14) days advance notice to brainer, in the form of a cancellation email to firstname.lastname@example.org with the following subject line: Cancellation of Account, with your account number. Such cancellation will be effective fourteen (14) days after actual receipt by brainer. When you cancel a Subscription, you cancel only future charges associated with your Subscription.
If any Product or Service is sold with cancellation terms which contradict this Section, the terms stated in connection with the sale of such specific Product or Service shall be effective and supersede this Section. One-time purchases cannot be canceled or refunded.
brainer reserves the right to allow early cancellation, and/or issue refunds or credits, in its sole and absolute discretion. Any such allowance will not create any obligation to afford the same privileges in the future.