Terms of Services
These terms and conditions of use ( “Terms and Conditions “) are a legal agreement between the person or entity who is using the BrainyApp service ( “You “, “Your, ” or “Licensee “) and Elevation Creative LLC. ( ” BrainyApp “, “Licensor “, or “we “).
These terms and conditions govern our respective rights and obligations with respect to Your access and use of the BrainyApp (the “Service “) and the associated electronic documentation (collectively, the “Materials “). By clicking the acceptance button or accessing or using the Service through our website (the “Site “), You are agreeing to be bound by all of these Terms and Conditions.
If You do not agree to all of these Terms and Conditions, BrainyApp is unwilling to grant You access to or use of the Service. In such event, do not click the acceptance button or access or use the Service.
- Free Trial. If You register on the BrainyApp Site for a free trial, we will make the Service available to You on a trial basis free of charge until the earlier of (i) the end of the free trial period or (ii) date that You commence use of the Service as a paying user (the “Free Trial Period “). Any data You enter into the Service during the Free Trial Period can be downloaded by You prior to the end of the Free Trial Period. If the data is not downloaded prior to such time, it will be permanently lost unless You purchase a License to continue to use such Service before the end of the Free Trial Period. Notwithstanding Section 4 (Fees, Payments and Taxes), Section 10 (Representations) and Section 13 (Disclaimer of Warranties), during the Free Trial Period, the Service is provided “As-Is ” without any warranty and You hereby agree to be bound by all of the terms and conditions set forth herein.
- License Grant. Subject to the provisions of these Terms and Conditions and Licensee’s payment of the Fees in accordance with Section 4, below, Licensor grants to Licensee a non-exclusive, non-transferable, non-sublicensable right to remotely access and use the Service for business purposes only ( “License “).
- Licensor may change, revise, modify, delete or discontinue (either permanently or temporarily) the functionality or scope of the Service at any time at its sole discretion (an “Update “). Following such Update, as applicable, (i) Licensee can elect to terminate this License in accordance with Section 16 or continue to access and use the Service in accordance with the provisions of these Terms and Conditions and (ii) the definition of the term “Service ” shall be automatically amended without any further action on the part of any of the parties to include such Update.
- Fees, Payments, and Taxes. The fees for access and use of the Service under this License ( “Fees “) are $15 per user per month or $180 per user per year to be billed to Your credit card (provided during the registration process) at the start of every month or on an annual basis, as selected by Licensee. Licensee hereby authorizes Licensor (or its designee) to charge the applicable Fees to Your credit card on a recurring basis. Licensee is responsible for all sales, excise, VAT and all other taxes (other than taxes on Licensor’s net income) associated with Licensee’s use of the Service. Licensor may increase the Fees (and bill Your credit card for such increased Fees) at any time and from time to time upon thirty (30) days prior notice to Licensee. Any Fee increases will become effective at the beginning of the next month or year, as applicable.
- Location of Service and Access. The Service will be hosted on one or more servers either owned or licensed by Licensor and will be accessible by Licensee over the Internet. In order to access the Service, Licensee will be required to register with Licensor (an “Account “) and will be provided with a unique user name and password for each such Account ( “Account Access Information “). In the event that Licensor determines that any Licensee has more than one employee or personnel of Licensee using the same Account, Licensor reserves the right to charge Licensee accordingly or to terminate the Licensee’s Account. Licensor has the right but not the obligation to monitor access to the Service and, without limiting any remedies that it may have hereunder or at law, may deny access to any Licensee who violates these Terms and Conditions.
Certain Rights and Restrictions Regarding Use of the Service.
- Equipment and Service. Licensee shall provide at its expense all hardware, Internet service and other items necessary for the access and use of the Service.
- Copies. The Service is protected by U.S. and international copyright and trade secret laws and treaties. Licensee may print and make copies of the materials regarding the Service for its own use. All such copies must include all of Licensor’s proprietary notices contained in the originals without alteration of any kind. Except as otherwise provided in this Section, Licensee may not make copies of the Service or accompanying materials.
- Reverse Engineer. Licensee may not, nor cause or permit any of its employees or any third party to, modify, adapt, translate, reverse engineer, decompile, disassemble, translate or create derivative works based on the Service without the prior written consent of Licensor, which Licensor may withhold in its sole discretion.
- Rent, Lease and Transfer. The Service is licensed only to Licensee. Licensee shall not sublicense, transfer, lease, assign, rent, distribute, sell or otherwise dispose of the Service (including any of the materials) on a temporary or permanent basis except with the written consent of Licensor, which Licensor may withhold in its sole discretion. Prior to transferring the Service to an authorized transferee, the transferee shall agree in writing to be bound by all of these Terms and Conditions.
- Access Restrictions. Without Licensor’s written consent, Licensee shall not permit or allow other persons or entities to have access to or to use any Account Access Information to access or use the Service or for any other purpose. Licensee shall not permit multiple users to share a single Account. Licensee accessing a particular Account is solely responsible for ensuring that the Account Access Information for accessing and using the Service is utilized only by such person. Licensor shall have no liability for any loss, claim, damages or other liability whatsoever that may arise from the unauthorized use of any Account Access Information. If any of Licensee’s Account Access Information is lost or stolen, it is Licensee’s responsibility to notify Licensor of such loss or theft so that the account can be deactivated and a new username and password can be provided. Licensor will use commercially reasonable efforts to effect password deactivation requests as soon as practicable after their receipt in writing from Licensee.
- Security. Licensor shall maintain appropriate safeguards for the protection and security of any Licensee Content (as defined in Section 6(G) below). Licensor shall not (i) modify any Licensee Content, (ii) access Licensee Content except to provide the Service and prevent or address service or technical problems or (iii) disclose Licensee Content, except as compelled by law or in accordance with Sections 6(G), 6(H) and 9. Although Licensor has taken measures to safeguard the Licensee Content and the Service, Licensor cannot guarantee the security of information transmitted during use of the Service or stored by Licensor and shall not be liable to Licensee or any other person or entity in any way for any compromise of the security of such information. Licensor may, but has no obligation to, remove Licensee Content and Accounts containing Licensee Content that Licensor determines in its sole discretion is/are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property, these Terms and Conditions, or applicable law (in addition to all rights of Licensor). Without limiting the generality of the foregoing, Licensor shall fully cooperate with any law enforcement authorities or court order requesting or directing it to disclose the identity of Licensee or any other information in connection with any Licensee Content used in connection with the Service or User Contributions (as defined in Section 6(H) below) posted on or through the Site.
- Manner of Use. Licensee is solely responsible for all information and data uploaded into the Service ( “Licensee Content “) and all activity that occurs under Licensee’s Accounts. Licensee shall not use the Service for any illegal or unauthorized purpose(s). Licensee may only use the Service in accordance with the User Guide and applicable laws and government regulations. Licensee must not, in the use of the Service, violate any applicable laws (including but not limited to applicable copyright and other laws).
- Public Forums and Other User Contributions. The Site may contain message boards, blogs, chat rooms, bulletin boards and other public forums that allow You to post, submit, publish, display or transmit to other users or other persons content, materials and information ( “User Contributions “). Any User Contributions shall be considered non-confidential and non-proprietary and may be read, collected or used by third parties. By providing User Contributions You hereby grant Licensor the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to any third party any such User Contributions for any purpose whatsoever. Licensee hereby represents and warrants that it has the right to contribute such User Contributions and such User Contributions comply with these
- Terms and Conditions. Licensee acknowledges that it shall be fully responsible for any User Contributions including without limitation, legality, reliability, accuracy and appropriateness. Licensor may (i) remove or refuse to post any User Contribution for any reason or no reason in its sole discretion, (ii) take any action with respect to any User Contribution that it deems necessary or appropriate in its sole discretion (iii) disclose the identity of the person making the User Contribution or any other information related thereto to any third party who claims that material posted violates their rights including, without limitation, intellectual property rights or privacy rights, (iv) take any appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site, (v) terminate or suspend Licensee’s access to all or any portion of the Site.
- Bandwidth Usage and Storage. Licensor may, in its discretion, disable any Account or limit bandwidth usage should an Account’s bandwidth consumption exceed average usage (as determined by Licensor) in any one month period. Licensor also may, in its discretion, disable any Account or limit storage capacity with respect to such Account should Licensee’s storage exceed average usage (as determined by Licensor).
- Integration with Non BrainyApp Applications and Services. If You install or enable applications or services not provided by Licensor (e.g. Google, gmail, Mailchimp, etc.) for use with the Service, You acknowledge that Licensor may allow providers of such applications to access Licensee Content as required for the interoperation of such applications or services with the Service. Licensor shall not be responsible for any disclosure, modification or deletion of Licensee Content resulting from any such access by any such application or service providers. Licensor does not warrant or support these products or services, whether or not they are designated as “certified ” or otherwise (support, if any being provided by such providers). Purchase of non BrainyApp products or services is not required to use the Service except a supported computing device, operating system, web browser and internet connection. If the provider of such applications and services ceases to make such applications and services available for interoperation with BrainyApp Service, Licensor may cease providing such access without entitling You to any refund, credit or other compensation.
- Ownership of Service and Intellectual Property Rights. Licensor does not sell the Service to Licensee, but only grants Licensee a license to use the Service according to these Terms and Conditions. Licensor and its licensors retain ownership in the Service and all intellectual property rights in the Service, including without limitation any and all patents, copyrights, trade secrets, trademarks and any other proprietary and other rights. Licensee shall not use any intellectual property rights of Licensor without the prior written consent of Licensor. Licensee agrees that Licensor may audit Licensee’s use of the Service for compliance with these Terms and Conditions at any time, upon reasonable notice. All rights not specifically granted under these Terms and Conditions are reserved by Licensor and its licensors.
- Relationship of Parties. In performing any and/or all of our respective obligations under this License, Licensor and Licensee shall each operate as and have the status of being an independent contractor of the other party, and neither party shall act as or be an agent or employee of the other party.
- Confidentiality. Licensee acknowledges and agrees that these Terms and Conditions and the Service contain proprietary information of Licensor ( “Confidential Information “), and Licensee hereby agrees to maintain the confidentiality of the Confidential Information using at least as great of degree of care as it uses to maintain the confidentiality of its own most confidential information. Notwithstanding the foregoing, in the event that Licensee is required by a valid order by a court or other governmental body to disclose Confidential Information, Licensee may disclose such Confidential Information provided that Licensee first gives Licensor prompt notice thereof in order to enable Licensee to have the opportunity to seek protection from such order of disclosure.
- Representations. Licensee hereto represents and warrants to Licensor that: (i) it has the power and authority to enter into these Terms and Conditions. Further, Licensee agrees that it will not export or re-export the Service or accompanying Materials (or any copies) in violation of any applicable export control laws or regulations of the United States, and that Licensee possess the necessary skills and qualifications to competently use the Service in accordance with these Terms and Conditions.
- Indemnification of Licensor. Licensee will defend, indemnify and hold harmless Licensor and its subsidiaries, licensors and affiliates (and their respective officers, directors, employees and agents) against any and all claims, losses, damages, liabilities, deficiencies, judgments, assessments, fines, costs and other expenses (including reasonable attorneys’ fees and costs) arising from or relating to (i) accessing the Service or any third party service to which You may import or export Licensee Content, (ii) use or misuse of the Service (including any data or information input into the Service or file or database created thereby), and/or any hardware (if applicable) furnished by Licensor in connection therewith, including without limitation any disclosure of any person’s medical information in violation of HIPAA, any violations under the Gramm-Leach-Bliley Act or any other applicable privacy law ( “Privacy Laws “), (iii) breach of any of the provisions of these Terms and Conditions, and (iv) any action taken by Licensor during, as a result of or as a consequence to any investigations by Licensor or law enforcement.
- Indemnification of Licensee. Licensor will defend, indemnify and hold harmless Licensee against any claims, losses, damages, liabilities, deficiencies, judgments, assessments, fines, costs and other expenses (including reasonable attorneys’ fees and costs) arising from or relating to any claim by a third party that the use of the Service as permitted hereunder infringes or misappropriates the U.S. intellectual property rights of a third party ( “Third Party Claim “) provided that You (i) promptly provide written notice of the Third Party Claim; (ii) give Licensor the sole control of the defense and settlement of the Third Party Claim (provided that we may not settle any Third Party Claim unless the settlement unconditionally releases You of all liability) and (iii) provide to Licensor all reasonable assistance, at Licensor’s expense. In the event that a Third Party Claim or if we believe that the Service may infringe or misappropriate any U.S. intellectual property right, we may, in our sole discretion and at no cost to You, (a) modify the Service so that it no longer infringes or misappropriates, (b) obtain a license for You to continue to use the Service, or (c) terminate Your License upon thirty (30) days prior written notice and refund to You any prepaid Fees covering the remainder of the term of such Service after the effective date of termination. The foregoing states Licensor’s sole liability to and Licensee’s sole remedy for the claims described therein.
- Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, THE SITE, THE SERVICE (INCLUDING ANY WRITTEN MATERIALS), AND ANY SUPPORT ARE ALL PROVIDED “AS IS ” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE AND ANY WARRANTY OF ERROR FREE APPLICATION OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR DOES NOT WARRANT THE USE, RESULTS OR PERFORMANCE OF THE SERVICE, THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, OR THAT THE SERVER(S) THAT MAKE(S) THE SERVICE AVAILABLE, IS FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
- Limitation of Liability. NEITHER LICENSOR NOR ANY PERSON OR ENTITY WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OPERATION OR SUPPORT OF THE SERVICE SHALL BE LIABLE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, PRODUCT LIABILITY OR OTHER CAUSE OF ACTION) TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS REVENUE OR PROFITS, BUSINESS INTERRUPTION FOR ANY REASON, LOSS OF BUSINESS INFORMATION OR DATA, INJURY TO REPUTATION, PERSONAL INJURY (WHETHER PHYSICAL OR MENTAL OR BOTH), GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES OR VIOLATION OF ANY APPLICABLE PRIVACY LAWS ARISING OUT OF (I) THE USE, MISUSE, OR INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF LICENSEE’S TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (V) TERMINATION OF ANY OF LICENSEE’S ACCOUNTS; OR (VI) ANY OTHER MATTER RELATING TO THE SERVICE OR USE THEREOF, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S ENTIRE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO LICENSOR UNDER THESE TERMS AND CONDITIONS.
- Limitation on Time to File Claim. Any cause of action or claim Licensee may have arising out of or relating to these Terms and Conditions or the Site or the Service must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim shall be permanently barred.
- U.S. Government Restricted Rights. The Service is “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 ( “Restricted Rights Provisions “). Consistent with the Restricted Rights Provisions, 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 these Terms and Conditions. The Manufacturer of the Service is ELEVATION CREATIVE LLC. The servers on which the Service is located is at Hostnine Web Services, principal offices are located in Houston.
- DMCA Notice. Licensor’s web site through which Licensee will access and use the Service (the “Site”) complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. § 512, as amended). If Licensee has any complaints or objections to material posted on the Site, or if Licensee believes that material posted on the Site infringes a copyright that Licensee holds, Licensee should notify our Designated Agents at info@ElevationCreative.net, or at the following address: ELEVATION CREATIVE LLC., 1122 Shoma Dr, Royal Palm Beach, Fl 33414.
Term and Termination.
- Term. These Terms and Conditions shall become effective upon Your agreement to the provisions hereof by clicking a box indicating Your acceptance or by executing an order form that references these Terms and Conditions and shall remain effective for a period of one month or one year, as applicable, unless and until terminated hereunder (the “Initial Term “). Upon expiration of the Initial Term, these Terms and Conditions shall automatically renew for additional successive one month or one year periods, as applicable, unless and until either party provides written notice of nonrenewal at least 30 days prior to the end of the then current term. If You elect to use the Service for a Free Trial Period, and do not purchase a License before the end of the Free Trial Period, these Terms and Conditions will terminate at the end of the Free Trial Period.
- Termination. Licensor may immediately terminate this License without notice if You fail to comply with any provision of these Terms and Conditions. Licensor has the right to immediately terminate this License without notice if it becomes aware that Licensee unlawfully transmits through the Site copyrighted material without a license, valid defense or fair use privilege to do so or if Licensee causes or permits violation of Sections 7, 9 or 10 of these Terms and Conditions. Additionally, either party may terminate this License at any time for any reason however, Licensor shall not refund any Fees or portion of any Fees to Licensee.
- Effect of Termination. Upon termination, (i) Licensee shall, as soon as is commercially practical, cease from using and return all Confidential Information to Licensor; and (ii) except as otherwise specifically provided in these Terms and Conditions, all rights and licenses granted to each party by the other party hereunder shall automatically cease and revert back to the granting party without any further action.
- Return of Data. Except during a Free Trial Period, upon termination, all of Licensee’s uploaded data residing on Licensor’s server(s) as of the date of termination shall be returned to Licensee upon written request.
- Survival Upon Termination. Sections 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 18 and all other provisions of these Terms and Conditions intended to survive termination or expiration of this License will survive the termination or expiration of this License without limitation.
- Notices. All notices required by these Terms and Conditions or given in connection with this License shall be deemed given as of the day they are emailed to You or posted on the Site. The email address of record for notices and requests in connection with this License shall be deemed to be the email address provided by the Licensee at the time of Account creation. Licensor is not responsible for the deliverability or changes to the email address. Notification of any change to the Licensee’s email address is the sole responsibility of the Licensee.
- Injunctive Relief. Licensee acknowledges that breach of Sections 6, 7 and/or 9 of these Terms and Conditions will give rise to irreparable injury to Licensor, and leave Licensor inadequately compensated in damages. Accordingly, Licensor may seek and obtain injunctive relief against Licensee’s breach or threatened breach, in addition to any other legal remedies, such as (but not limited to) suit for copyright infringement. Licensee further acknowledges and agrees that this provision is necessary for the protection of Licensor’s legitimate business interests and is reasonable in scope and nature.
- Governing Law. These Terms and Conditions shall be governed and construed in accordance with the laws of the Commonwealth of Florida exclusive of its conflicts of laws principles.
- Jurisdiction. Licensee hereby consents to the exclusive jurisdiction and venue of the courts of the Commonwealth of Florida, Palm Beach County, and the United States District Court for the Eastern District of Florida in connection with all disputes arising out of or relating to these Terms and Conditions.
- Severability. In the event that any provision of these Terms and Conditions is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any remaining provisions shall not in any way be affected or impaired and a valid, legal and enforceable provision of similar intent and economic impact shall be substituted therefor.
- Entire Agreement. Licensor reserves the right at any time to modify these Terms and Conditions and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be effective immediately and incorporated into these Terms and Conditions. Licensee’s continued use of the Service will be deemed acceptance thereof.
- Interpretation. The provisions of these Terms and Conditions shall be interpreted and construed in accordance with their fair meanings, and not strictly for or against any party, regardless of which party may have drafted these Terms and Conditions or any specific provision of these Terms and Conditions.
- Waiver. The waiver of any provision of these Terms and Conditions shall not be effective unless in writing and signed by the party against which it is sought to be enforced. The failure of any party to insist, in any one or more instances, upon performance of any of these Terms or Conditions shall not be construed as a waiver of future performance of any terms, covenants or conditions of this License, and the obligations of each party with respect thereto shall continue in full force and effect.
- Assignment; Binding Nature. These Terms and Conditions shall be binding upon the parties and their successors and permitted assigns. Licensee may not assign this License, or any portion thereof, to any third party without Licensor’s express prior written consent. Licensor may assign this License and all of its rights and obligations hereunder to any affiliate or to any successor to Licensor’s business.
- Export Compliance. The Service and any other technology and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Licensee shall not permit use of the Service in a U.S. embargoed country or in violation of any U.S. export law or regulation.