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Last Modified: 05/31/16
BrainCheck, Inc. (“BrainCheck”) provides technology for you to measure and track information about cognitive health. BrainCheck’s technology may be delivered to you through its website located at braincheck.com (the “Website”), its mobile software application (the “BrainCheck App”), or through schools, doctors and other third parties using one or more software applications (the “Applications”). The technology and services provided through the Website, the BrainCheck App and the Applications are collectively hereinafter referred to as the “Services.” By registering to use the Services through the Website, by downloading or using the BrainCheck App, or by using the Applications through a third party, you agree to and are bound by the terms and conditions set forth in these BrainCheck Terms of Use (the “Agreement”).
If you do not accept this Agreement, you are not authorized to use the Services. We may modify this Agreement at any time and such modification will be effective upon posting to the Website, the BrainCheck App and/or including it in the Applications, however we will endeavor to notify our users of any such changes via email or via notification when using the Services.
The Services may include material, such as software, text, graphics, images, video, audio, data and other material (collectively referred to as the “Content”). The Content may be owned by us or others, including other users of the Services or other third parties (the “Third Party Content”). BrainCheck makes no claim of ownership in connection with Third Party Content and makes either licensed use or fair use of such Content. The Content is protected by copyright under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content and you may not use the Content except as permitted under this Agreement.
BrainCheck is a trademark of BrainCheck, Inc. All other trademarks referenced, depicted, or otherwise used in connection with the Services (the “Third-Party Trademarks”) belong to their respective owners or licensees and BrainCheck is not affiliated with, sponsored by, or otherwise associated with such entities unless such a relationship is explicitly identified in the Services. The Third-Party Trademarks may not be used to disparage any applicable third-party, any of their products or services, or in any manner in which, in our reasonable judgment, may damage any goodwill in the Third-Party Trademarks.
The Services may include links to, and content and data from, third-party websites (“External Sites”). These links, content, and data are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. In addition, the Services may contain content posted, stored, or displayed at the direction of users of the Services, for which we cannot accept any responsibility or liability.
The Services are for personal use only and may not be used in connection with any commercial endeavors except those that are specifically approved by us. The following activities are expressly prohibited: (i) collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other communications, (ii) any use of the Services, which in our sole judgment, degrades the reliability, speed, or operation of the Services or any underlying hardware or software thereof, and (iii) any use of the Services that is unlawful or in violation of this Agreement. Installing the BrainCheck App grants BrainCheck the right to send the identifiers for your device to third parties for the use of advertising.
The Services are for use by individuals 13 years of age or older. By using the Services, you represent and warrant that you are at least 13 years old and are otherwise legally qualified to enter into and form contracts under applicable law. Membership in the Services is subject, in our sole discretion, to termination at any time. This Agreement is void where prohibited by law.
We are providing you with access to use the Services pursuant to a limited, non-exclusive, non-sublicenseable, non-transferable, revocable license with respect to the Services you purchased based upon the license fees you paid. You can use the Services for personal, non-commercial use only, and subject to the Terms of Use set forth herein. This license is available to you as long as your account is not terminated by us or by you. If these Terms of Use are not enforceable where you are located, you may not use the Service. BrainCheck reserves all right, title, and interest not expressly granted under this license to the fullest extent possible under applicable laws.
The Services, including the Website, the BrainCheck App and the Applications, or any portion thereof, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose without the express written consent of BrainCheck. Except as expressly set forth herein, this Agreement grants you no rights in or to the intellectual property of BrainCheck or any other party. The license granted in this section is conditioned on your compliance with the terms and conditions of this Agreement. In the event that you breach any provision of this Agreement, your rights under this section will immediately terminate.
When accessing the Services through the BrainCheck App that was downloaded from an app store or app distribution platform, such as the Apple App Store or Google Play, (the “App Provider”), you acknowledge and agree that: (a) this Agreement is concluded between us, and not with the App Provider, and that we are solely responsible for the BrainCheck App (not the App Provider); (b) the App Provider has no obligation to furnish any maintenance and support services with respect to the BrainCheck App; (c) in the event of any failure of the BrainCheck App to conform to any applicable warranty, (i) you may notify the App Provider and the App Provider will refund the purchase price for the BrainCheck App to you (if applicable), (ii) to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the BrainCheck App, and (iii) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility; (d) the App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the BrainCheck App or your possession and use of the BrainCheck App, including, but not limited to: (i) product liability claims; (ii) any claim that the BrainCheck App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; (e) in the event of any third party claim that the BrainCheck App or your possession and use of the BrainCheck App infringes that third party’s intellectual property rights, we will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement; (f) the App Provider, and its subsidiaries, are third party beneficiaries of this Agreement as it relates to your license of the BrainCheck App, and that, upon your acceptance of the terms and conditions of this Agreement, the App Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the BrainCheck App against you as a third party beneficiary thereof; and (g) you must also comply with all applicable third party terms of service, including the Apple App Store Terms and Conditions and the Usage Rules or the Google Play Terms of Service, when using the BrainCheck App.
The Services are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States. Any use of the Services beyond the scope of the foregoing license is strictly prohibited.
Except with our written permission, you shall not:
Engaging in prohibited uses is grounds for immediate termination of your license to use the Services, and may also subject you to civil or criminal penalties.
You agree to defend, indemnify, and hold BrainCheck harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your uploading of, access to, or use or misuse of the Content or the Services. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
IN NO EVENT SHALL BRAINCHECK OR ITS AFFILIATES, OFFICERS AND/OR EMPLOYEES BE LIABLE WITH RESPECT TO THE SERVICES FOR (A) IN THE AGGREGATE, ANY AMOUNT IN EXCESS OF THE FEES PAID BY YOU TO USE THE SERVICES; (B) LOST PROFITS, LOST DATA, OR FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION GOOD FAITH AND REASONABLE CARE ARISING OUT OF YOUR ACCESS TO OR USE OF THE SERVICES; OR (C) ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF A WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN BRAINCHECK AND YOU. YOU UNDERSTAND THAT THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
YOU AGREE THAT USE OF THE SERVICES IS AT YOUR OWN SOLE RISK AND THAT THE SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BRAINCHECK AND ITS AFFILIATES, OFFICERS AND/OR EMPLOYEES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
BRAINCHECK STRIVES TO MAINTAIN THE SERVICES ON A COMMERCIALLY REASONABLE BASIS AND CANNOT GUARANTEE THAT YOU WILL HAVE ACCESS TO THE SERVICES AT ALL TIMES.
BRAINCHECK, OUR AFFILIATES, AND OUR PARTNERS, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS, MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICES OR THE CONTENT (INCLUDING THE USER CONTENT), INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY.
NEITHER WE NOR OUR AFFILIATES OR PARTNERS SHALL BE SUBJECT TO LIABILITY FOR TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION CONVEYED TO USERS OF THE SERVICES OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOUR USE OF THE SERVICES AND THE CONTENT IS AT YOUR OWN RISK.
WE MAKE NO WARRANTY THAT THE SERVICES OR THE BRAINCHECK APP WILL OPERATE ERROR FREE OR THAT THE SERVICES, OUR SERVER(S), OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICES OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE COSTS.
THE BRAINCHECK APP, SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
THE SERVICE DOES NOT PROVIDE PROFESSIONAL MEDICAL SERVICES OR ADVICE; NO DOCTOR-PATIENT RELATIONSHIP
BrainCheck provides the Services for informational purposes only. THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. BrainCheck is not a medical professional, and BrainCheck does not provide medical services or render medical advice. The Services are not a substitute for the advice of a medical professional, and the information made available on or through the Services should not be relied upon when making medical decisions, or to diagnose or treat a medical or health condition. If you require medical advice or services, you should consult a medical professional. YOUR USE OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND BRAINCHECK.
The Services may now or in the future permit the submission of Content at the direction of users of the Services (“User Content”) and the hosting, sharing, and/or publishing of such User Content. You understand that whether or not such User Content is published, we do not guarantee any confidentiality with respect to any submissions.
You shall be solely responsible for User Content you submit and the consequences of our posting or publishing such User Content. In connection with any User Content you submit, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Services and this Agreement; and (ii) you have the express consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by the Services and this Agreement. By submitting the User Content to us, you hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, modify, display, and perform all or any portion of the User Content in connection with our operation of the Services and our (and our successors’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Services a non-exclusive license to access your User Content through the Services, if you have permitted such access through your account settings, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content as permitted through the functionality of the Services and under this Agreement. We may maintain copies of any User Content for purposes of backup, security, or maintenance, or as required by law.
In connection with User Content, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant us all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage us or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; or (v) impersonate another person. We do not endorse any User Content or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with any User Content. We do not permit copyright infringing activities or infringement of intellectual property rights through the Services, and we will remove all Content and User Content if properly notified that such Content or User Content infringes on another's intellectual property rights. We may remove any Content and User Content without prior notice. We may also terminate your access to the Services, if you are determined to be a repeat infringer. A repeat infringer is anyone who has been notified of infringing activity more than once and/or has had any User Content removed from the Services more than twice. We also reserve the right to decide whether Content or User Content is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law, including, but not limited to, pornography, obscene or defamatory material, or excessive length. We may remove such User Content and/or terminate your access for uploading such material in violation of this Agreement at any time, without prior notice and at our sole discretion.
If you are a copyright owner or an agent thereof and believe that any User Content or other 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): (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) 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; (iii) 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; (iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address; (v) 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 (vi) 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.
Our designated Copyright Agent to receive notifications of claimed infringement and other notices relating to User Content and/or violation of this Agreement (e.g., violations of criminal laws) is Amy Ewbank, c/o BrainCheck, Inc./ Email: amy@braincheck.com. For clarity, only DMCA notices and notices relating to complaints in connection with User Content or violations of this Agreement should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be addressed to our standard support contacts as identified on our Website or through the Services.
The terms of BrainCheck’s Privacy Policy are incorporated into these Terms of Use and apply to your use of the Services. BrainCheck’s Privacy Policy may be found at http://www.braincheck.com/privacy-policy.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction.
This Agreement is governed by the internal substantive laws of the State of Texas, without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the City of Houston in the State of Texas. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Agreement, which shall remain in full force and effect. Failure by us to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you, this Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.