Terms of Use – Total Brain

Terms of Use

TERMS OF USE

Effective September 12, 2018

About us

This website is owned and operated by Brain Resource, Inc. d/b/a Total Brain (“Total Brain,” “us,” “our,” or “we”). These Terms of Use(“Terms“) set forth the terms and conditions under which we provide our “Services”, which includes:

  • our brain performance and mental health analysis software and mobile application (the “Mobile App(s)” and together with other software we may offer, the “Platform”);
  • our client reporting services (the “Reporting Services”); and
  • our corporate website at mybrainsolutions.com, and other websites that link to/post this Policy (including any subdomains or mobile versions the “Services(s)”).

Clients

Our Services may be provided to organizations (our “Clients”) that have entered into an agreement with us (a “Client Agreement”). When our Services are provided as part of a Client Agreement, we may share certain information with our Client about that Client’s users of our Services (“Client Users”) as part of our Reporting Services (the details of this sharing can be found in our Privacy Policy).

Other Agreements

To the extent additional rules or guidelines affect your use of our Service, those rules and guidelines (including our Privacy Policy) are hereby incorporated by this reference into these Terms. Additionally, these Terms are part of our Client Agreements, and where in conflict, any such Client Agreement will control.

By using any of our Service, you agree to these Terms. If you do not agree to these Terms, you should immediately stop using our Service. Through your use of our Service, you agree to these Terms.

Reporting

Clients may offer the Service to Users at no cost. We may, subject to a Client Agreement, share certain information in the form of Client Reports with the Clients as described further in our Privacy Policy. However, Clients are responsible for obtaining consent from Users, Client Users, or other parties which may be necessary for the Client to receive the Client Reports as set forth in the Client Agreement.

Consent to Electronic Communications

By using the Services, you agree that Total Brain may communicate with you electronically regarding your use of the Services and that any notices, agreements, disclosures or other communications that Total Brain sends to you electronically will satisfy any legal communication requirements, including that the communications be in writing. To withdraw your consent from receiving electronic notice, please notify Total Brain at the email or mailing address included below.

Modifications and Interruption to the Service

We reserve the right to modify or discontinue all or any portion of our Service with or without notice to you. We will not be liable if we choose to exercise this right. You acknowledge and accept that we do not guarantee continuous, uninterrupted or secure access to our Service, or that our Service will be error free. You understand that usage of our Service may be interfered with or adversely affected by numerous factors or circumstances outside of our control. You are solely responsible for ensuring that you have the necessary means to access our site, including and software, devices, or internet connections which may be required.

Your Access to the Service

As a condition of your right to access and use our Service, you represent that you are of legal age to enter into a binding contract and that you are not a person barred from accessing the Service under the laws of the United States or any other country. Total Brain reserves the right to terminate your access with or without reason at any time. YOU ARE ENTIRELY RESPONSIBLE FOR ALL ACTIVITIES CONDUCTED IN CONNECTION WITH THE USE OF THE SITE IN CONNECTION WITH YOUR ACCOUNT.

Intellectual Property

All content, copyrights and other intellectual property rights in the content available on our Services, including without limitation, its design, and any text, graphics, interfaces, or the selection and arrangements thereof (collectively “Content”) is owned by Total Brain or its Clients, with all rights reserved, or in some cases may be licensed to Total Brain or its Clients by third parties.

This Content is protected by the intellectual property rights of Total Brain or those owners. All Content which qualifies for protection under U.S. Federal Copyright Law is subject to the exclusive jurisdiction of the Federal Court System, whether registered or unregistered.

Complaints

If you believe that any Content on our Services violates these Terms or is otherwise inappropriate, please report the content by contacting us using the information below.

Restricted Activities

You may not engage in any of the following with regard to the Services (including without limitation posting or transmitting content through the Service):

  1. violate or encourage the violation of any local, state, national, or international law or regulation;
  2. collect or store personal data about other users of our Services or solicit personal information from any individual without proper rights or consent of the individual;
  3. send or promote any message that is unlawful, libelous, defamatory, abusive, sexually explicit, threatening, vulgar, obscene, profane, disparaging regarding racial, gender or ethnic background, any statement that you have reason to know is false or misleading, or otherwise objectionable messages, as determined by Total Brain in its sole discretion;
  4. infringe any patent, trademark, trade secret, copyright, right of publicity or privacy, or other intellectual property or other right of any person, or distribute any content you do not have a right to make available under any law or under contractual or fiduciary relationships;
  5. promote or distribute any unauthorized advertising, promotional materials, or material which can be characterized as “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or similar material, any request for or solicitation of money, goods, or services for private gain, or any information posted primarily for advertising, promotional, or other commercial purposes;
  6. disrupt or interfere with the operation or security of the Service, or any websites or content linked to them;
  7. interfere with or damage the integrity of the Service, including, without limitation, through the use of viruses, Trojan horses, harmful code, denial of service attacks, packet or IP spoofing, forged routing or email address information or similar methods or technology or disobey any requirements, procedures, policies, or regulations of networks connected to our Service;
  8. use the Service to store, access, or transmit malicious code, files, scripts, agents, or other malware or programs intended to do harm, including, for example, viruses, worms, time bombs or Trojan horses;
  9. attempt to use another user, person or entity, misrepresent your affiliation with a person or entity, including (without limitation) Total Brain or create or use a false identity;
  10. attempt to obtain unauthorized access to the Services or portions thereof that are restricted from general access;
  11. use any meta tags or any other “hidden text” utilizing Total Brain name, trademarks, or product names;
  12. engage in any activity that interferes with any third party’s ability to use or enjoy the Service; or
  13. assist any third party in engaging in any activity prohibited by these Terms.

Further, without our written consent, you may not (to the maximum extent allowed by law):

  1. reproduce, duplicate, copy, sell, resell, create derivative works, or exploit for any commercial purpose any Total Brain Content, our Services, or any intellectual property or other proprietary material therein;
  2. use any high volume, automated, or electronic means (including, without limitation, robots, spiders, scripts, or other automated devices) to access the Services or monitor or copy our web pages or the content contained thereon;
  3. deep link to the Services for any purpose; or frame the Services, place pop-up windows over any content, or otherwise affect the display of the Services; and
  4. access the Services in order to build a competitive product or service, benchmark or compare the functionality with a non-Total Brain product/service, or otherwise attempt to reverse engineer or otherwise derive or obtain the Service’s source code, or any algorithms, trade secrets, or other proprietary material of Total Brain.

DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT AS EXPRESSLY PROVIDED IN ANY OTHER AGREEMENT BETWEEN YOU AND Total Brain, IT’S CLIENT, ITS RELATED ENTITIES, ITS SERVICE PROVIDERS, ITS LICENSORS, AND ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “COMPANY PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, RELATED TO OUR SITES. YOU UNDERSTAND AND AGREE THAT YOUR USE OF OUR SITES IS AT YOUR SOLE RISK. OUR SITES AND ALL CONTENT, PRODUCTS AND SERVICES OFFERED THROUGH THE SITES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY PARTIES ARE NOT RESPONSIBLE FOR THE TIMELINESS OF DELIVERY OF CONTENT, ANY FAILURES OF DELIVERY, ERRONEOUS DELETION, OR ANY LOSS OR DAMAGE OF ANY KIND YOU CLAIM WAS INCURRED AS A RESULT OF THE USE OF ANY OF OUR SERVICES.

UNDER NO CIRCUMSTANCES, WILL ANY OF THE COMPANY PARTIES BE LIABLE TO YOU OR TO ANY PERSON OR ENTITY CLAIMING THROUGH YOU FOR ANY LOSS, INJURY, LIABILITY OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO, USE OF, INABILITY TO USE, OR RELIANCE ON ANY OF OUR SERVICES, OR ANY CONTENT, PRODUCT OR SERVICE PROVIDED TO YOU THROUGH OR IN CONNECTION WITH ANY OF OUR SERVICES. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND WHATSOEVER, WHETHER DIRECT OR INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, GOODWILL, REVENUE OR PROFITS. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS; EVEN IF ANY COMPANY PARTY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; AND WITHOUT REGARD TO THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, ILLEGAL OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF THE COMPANY PARTIES UNDER SUCH CIRCUMSTANCES TO YOU OR ANY PERSON OR ENTITY CLAIMING THROUGH YOU FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED WILL NOT EXCEED ONE HUNDRED U.S. DOLLARS.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

You acknowledge that you may have or may in the future have claims against us which you do not know or suspect to exist in your favor when you agreed to these Terms and which if known, might materially affect your consent to these Terms. You expressly waive all rights you may have under Section 1542 of the California Civil Code, which states:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

IF THIS CLAUSE IS HELD TO BE UNENFORCEABLE IN WHOLE OR IN PART IN ANY JURISDICTION DUE TO RELEVANT LAWS, THEN IN NO EVENT SHALL OUR OR THE RELEASEES’ TOTAL LIABILITY TO YOU EXCEED $100.00. NOTHING IN THIS CLAUSE SHALL LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE.

Indemnification

You agree to indemnify and hold the Total Brain Parties harmless from any claim or demand, including reasonable attorney’s fees and costs, made by any third party due to or arising out of your use of the Services in a manner not permitted by these Terms, including without limitation your actual or alleged violation of these Terms, or infringement of a third party’s intellectual property or other rights by you or another user of our Services using your computer, mobile device or account.

Providing Feedback to Total Brain

We welcome your comments and feedback about our Services. All information and materials submitted to Total Brain through the Services or otherwise, such as any comments, feedback, ideas, questions, designs, data or the like regarding or relating to the Services or the business of Total Brain (collectively, “Feedback“), will be considered NON-CONFIDENTIAL and NON-PROPRIETARY with regard to you, but Total Brain reserves the right to treat any such Feedback as the confidential information of Total Brain.

By submitting Feedback to Total Brain, you assign to the Total Brain Parties, free of charge, all worldwide rights, title and interest in all copyrights and other intellectual property rights in such Feedback. The Total Brain Parties will be entitled to use any Feedback you submit, and any ideas, concepts, know-how or techniques contained in any such Feedback, for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and services using such Feedback without restriction and without compensating you in any way. You are responsible for the information and other content contained in any Feedback you submit to us, including, without limitation, its truthfulness and accuracy.

GOVERNING LAW; ARBITRATION

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH TOTAL BRAIN AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM TOTAL BRAIN.

These Terms shall be governed by and construed in accordance with the laws of the State of Colorado and the United States of America, without resort to any conflict of law provisions. In the event of any controversy or claim arising out of or relating in any way to these Terms or the Services shall be filed only in the state and federal courts located in Denver, Colorado and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts.

Compliance with Laws

You assume all knowledge of applicable law and you are responsible for compliance with any such laws. You may not use our Services in any way that violates applicable state, federal, or international laws, regulations, relevant guidance, or other government requirements.

Changes to These Terms

We reserve the right, at any time, to modify, alter, or update these Terms without prior notice. You are encouraged to check this page regularly for changes to the Terms. Modifications will become effective immediately upon being posted to our Services, without further notice to you. Your continued use of any of our Services after such modifications are posted constitutes your acknowledgement and acceptance of such modifications, and you may not amend these Terms.

Other Terms

If any provision of these Terms is determined by a court of law to be unlawful, void or unenforceable for any reason, the other provisions (and any partially-enforceable provision) shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent, and the invalid provision will be modified as necessary to make it valid and enforceable while as closely as possible reflecting the original intentions of Total Brain.

You agree that these Terms and any other agreements referenced herein may be assigned by us, in our sole discretion, to a third party in the event of a merger or acquisition or otherwise. These Terms shall apply in addition to, and shall not be superseded by, any other written agreement between us in relation to your participation as a contributor to our Service.

You agree and understand that these Terms together with any other applicable click-through agreements you may have entered into regarding our Services, constitutes the entire agreement between you and Total Brain regarding your use of the Services, and that any other prior agreements between you and Total Brain are superseded by these Terms.

Any failure by Total Brain to exercise its rights under these Terms or to enforce the terms hereof will not constitute a waiver of those rights. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of our Services or relating to these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Contact Us

If you have any questions about these Terms, please feel free to please contact us at

Email: legal@totalbrain.com

Physical address: Total Brain

Attn:  Legal

268 Bush Street #2633
San Francisco, CA 94104

Notice for California Users

Under California Civil Code Section 1789.3, California users of our Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.