Terms of Service
Our Terms of Service
Welcome to Brainfall.com Inc. (“Brainfall”). Brainfall provides services (the “Services”) available at our Web site (the “Site”) http://www.brainfall.com to you (“you” or “User”).
The following terms and conditions, along with any other policies or guidelines posted on this Site, shall govern your use of this Site. By using this Site, the Services, and any service, application, plug-in, component, functionality, or program created by Brainfall, you are agreeing to the following terms and conditions. Please read them carefully before using this Site.
By visiting this Site and/or by completing the registration process for the Services, you represent and warrant that you have read, understand, have the legal capacity to, and hereby agree to be legally bound by these terms and conditions. Brainfall is available ONLY TO USERS 13 YEARS OF AGE OR OLDER. REGISTRANTS BETWEEN THE AGES OF 13 AND 18 MUST HAVE A PARENT ASSIST IN THE COMPLETION OF REGISTRATION.
A. MODIFICATIONS TO THIS AGREEMENT
We reserve the right, at our sole discretion, to change, modify or otherwise alter these terms and conditions at any time. You can find the most recent version of these terms and conditions at http://www.brainfall.com/termsofservice/, with the date of last modification noted above. Such modifications shall become effective immediately upon the posting thereof. Therefore, we encourage you to check the date of our terms and conditions whenever you visit this Site to check if they have been updated. You must review this agreement on a regular basis to keep yourself apprised of any changes. If you do not agree to the revised terms and conditions, your sole recourse is to immediately stop all use of the Services. Your continued use of the Services following the posting of modifications will constitute your acceptance of the revised terms and conditions. Should you have any questions regarding the use of our Site, please contact us at: firstname.lastname@example.org.
B. YOUR REGISTRATION OBLIGATIONS.
We provide the Services for your personal use. You may not use the Services to conduct business without a separate written contract with Brainfall.
To obtain and use certain aspects of the Services, you may be required to register with Brainfall by completing a registration form and designating a user ID and password. When registering with Brainfall you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
You may not authorize any third party to access or use the Services on your behalf. You are responsible for maintaining the confidentiality of the user ID and password, and are fully responsible for all activities that occur under your user ID or password. You agree to immediately notify Brainfall of any unauthorized use of your user ID or password or any other breach of security. Brainfall cannot and will not be liable for any loss or damage arising from any unauthorized use of your account.
C. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION.
By registering with Brainfall, you understand that we may send you communications or data from Brainfall regarding the Services, including but not limited to (i) notices about your use of the Services, including any notices concerning violations of use, (ii) updates, and (iii) promotional information and materials regarding Brainfall’s products and services, via electronic mail. We give you the opportunity to opt-out of receiving electronic mail from us by following the opt-out instructions provided in the message.
D. USER CONDUCT/ACCEPTABLE USE POLICY.
You may not use the Services in any way that violates applicable federal, state, or international law, or for any unlawful purpose. You may not use the Services to send, receive, or download messages or materials that are inappropriate or violate the intellectual property rights of Brainfall or others.
To the extent that the Services provide Users an opportunity to store and exchange information, materials, data, files, programs, ideas and opinions (“User Content”), you hereby represent and warrant that you have all necessary rights in and to all User Content you provide and all information contained therein. Brainfall has the right in its sole discretion to edit or remove any User Content or other material sent via, stored via, submitted to, or uploaded to the Services. Without limiting the foregoing, Brainfall has the right, but not the obligation, to edit or remove any content or other material that it, in its sole discretion, finds to be in violation of the provisions of these terms and conditions, or for any other reason. You acknowledge and agree that Brainfall shall not assume or have any liability for any action or inaction by Brainfall with respect to any User Content. Users shall remain solely responsible for User Content.
Without limitation, Brainfall reserves the right to terminate your access to and use of the Services if, in our view, your conduct fails to meet any of the following guidelines for User conduct:
1. You may not attempt to harm, disrupt, or otherwise engage in activity that diminishes, the Brainfall Site, computer systems and network, or the Services.
2. You may not attempt to interfere with any other person’s use of the Services.
3. You may not misrepresent your identity or impersonate any person.
4. You may not attempt to gain access to any account, computers or networks related to the Services without authorization.
5. You may not attempt to obtain any data through any means from the Services, except if we intend to provide or make it available to you.
6. You may not attempt to charge others to use the Services either directly or indirectly.
7. You may not use the Services to participate in pyramid schemes or chain letters.
8. You may not use the Services to send, either directly or indirectly, any unsolicited bulk e-mail or communications or unsolicited commercial e-mail or communications.
9. You may not use the Services for defaming, abusing, harassing, stalking, threatening or otherwise violating the legal rights of others.
10. You may not use the Services to send or otherwise make available, any material protected by intellectual property laws unless you own or control the rights to such material or have received all necessary consents.
11. You may not use the Services to send or otherwise making available any material that contains viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another’s computer or property.
12. You may not use the Services to download any material sent by another User of the Services that you know, or reasonably should know, cannot be legally distributed in such manner.
13. You may not use the Services to violate any code of conduct or other guidelines which may be applicable to the Services or the Site.
14. You may not use the Services to harvest or otherwise collecting information about others, including e-mail addresses.
15. You may not attempt to modify, translate, adapt, edit, copy, decompile, disassemble, or reverse engineer any software used or provided by Brainfall in connection with the Brainfall Site or Services.
All judgments concerning the applicability of these guidelines shall be at the sole and exclusive discretion of Brainfall.
E. INTELLECTUAL PROPERTY RIGHTS AND NOTICES.
All contents of the Brainfall’s Site and Services including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement (“Content”) are: Copyright © 2007 Brainfall.com, Inc., and/or the proprietary property of its suppliers, affiliates, or licensors. Content may not be reproduced, modified, derivative works created from, displayed, performed, published, distributed, disseminated, broadcasted or circulated to any third party (including, without limitation, the display and distribution of the material via a third party Web sites or other networked computer environment) without the express prior written consent of Brainfall and/or it suppliers, affiliates, or licensors. All rights reserved.
Brainfall, Brainfall.com, and the Brainfall logo are including without limitation, either trademarks, service marks or registered trademarks of Brainfall, and may not be copied, imitated, or used, in whole or in part, without Brainfall’s prior written permission or that of our suppliers or licensors. Other product and company names may be trade or service marks of their respective owners.
Brainfall may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter in its Site that are part of the Services. Unless we have granted you licenses to our intellectual property in these terms and conditions, our providing you with such Web pages does not give you any license to our intellectual property. Any rights not expressly granted herein are reserved.
F. NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.
Brainfall respects copyright law and expects Users to do the same. Brainfall expressly prohibits the use of its Services for the illegal transmission of copyrighted material, and will respond if notified by content owners to disable copyrighted material from being transmitted via its Services. In addition, Brainfall may disable individual accounts if these accounts are found to be illegally transferring copyrighted material.
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Brainfall’s Agent for Notice of claims of copyright or other intellectual property infringement (“Agent”) the written information specified below: (1) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) A description of the copyrighted work that you claim has been infringed upon; (3) A description of where the material that you claim is infringing is located on the Site; (4) Your address, telephone number, and e-mail address; (5) A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (6) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Brainfall’s Agent can be reached at: email@example.com.
G. THIRD PARTY CONTENT, SITES AND SERVICES.
The Services contain features and functionalities that may link you or provide you with certain functionality and access to third party content, including Web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. We may also provide some content to you as part of the Services. We are not responsible for any third party content you access with the Services, and you irrevocably waive any claim against us with respect to such sites and third-party content. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You are solely responsible for your dealings with any third party related to the Services, including the delivery of and payment for goods and services.
I. BRAINFALL MAKES NO WARRANTIES.
Brainfall intends for the information contained on its Site and Services to be accurate and reliable; however, errors sometimes may occur. In addition, Brainfall may make changes and improvements to the information provided herein at any time.
BRAINFALL PROVIDES ITS SITE AND SERVICES “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE,” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRAINFALL, ITS AFFILIATES, RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS AND/OR SUPPLIERS (EACH, A “BRAINFALL PARTY,” AND COLLECTIVELY, THE “BRAINFALL PARTIES”) MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. THE BRAINFALL PARTIES DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (1) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (2) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (3) WARRANTIES OR CONDITIONS THAT ACCESS TO OR USE OF THE WEB SITES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS CONTRACT.
J. LIMITATIONS OF LIABILITY
IN NO EVENT WILL ANY BRAINFALL PARTY BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS CONTRACT OR YOUR USE OF THE SOFTWARE OR SERVICE, EVEN IF SUCH BRAINFALL PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES UNDER SECTION K IS INDEPENDENT OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) NEGLIGENCE, OR (4) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH THE SERVICE, YOU DO NOT AGREE WITH ANY PART OF THIS CONTRACT, OR YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST ANY BRAINFALL PARTY WITH RESPECT TO THIS CONTRACT OR THE SERVICE, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE.
K. CHANGES TO THE SERVICE; ADDITIONAL LIABILITY LIMITATION.
WE MAY CHANGE THE SOFTWARE AND SERVICE OR DELETE FEATURES AT ANY TIME AND FOR ANY REASON. WITHOUT LIMITING THE GENERAL NATURE OF SECTIONS J AND K, THE BRAINFALL PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR (1) ANY CONTENT, INCLUDING WITHOUT LIMITATION, ANY INFRINGING, INACCURATE, OBSCENE, INDECENT, THREATENING, OFFENSIVE, DEFAMATORY, TORTIOUS, OR ILLEGAL CONTENT, OR (2) ANY THIRD PARTY CONDUCT, TRANSMISSIONS OR DATA. IN ADDITION, WITHOUT LIMITING THE GENERALITY OF SECTIONS J AND K, BRAINFALL IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE SOFTWARE AND SERVICES, (2) ANY INCOMPATIBILITY BETWEEN THE SOFTWARE AND SERVICES AND OTHER WEB SITES, SERVICES, SOFTWARE AND HARDWARE, (3) ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE SOFTWARE AND SERVICES IN AN ACCURATE OR TIMELY MANNER, OR (4) ANY DAMAGES OR COSTS OF ANY TYPE ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF ANY SOFTWARE AND SERVICES AVAILABLE FROM THIRD PARTIES THROUGH LINKS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
You agree to indemnify, defend and hold harmless, Brainfall, its affiliates, and their respective officers, directors, employees, agents, licensors, representatives, and third party providers, to and from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of this agreement by you. Brainfall reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with Brainfall in asserting any available defenses.
In addition, you agree that Brainfall is not responsible in any way for the accuracy or suitability of any payment of taxes to any entity on your behalf. You shall indemnify and hold Brainfall and (if applicable) any parents, subsidiaries, affiliates, officers, directors, agents and employees harmless against all liabilities, costs, interest and expenses (including reasonable attorneys’ fees) incurred by Brainfall that arise out of any third party or governmental claim that involves, relates to or concerns (i) any federal, state or county tax obligation or amounts due or owing under any tax regulation, law, order or decree or (ii) any dispute concerning the tax status of Brainfall.
M. TERMINATION OF SERVICE.
We may terminate or suspend your access to the Services at any time, in our sole discretion, without cause and/or without notice. Upon termination, your right to use the Services stops immediately. ONCE THE SERVICES ARE CANCELLED OR SUSPENDED, ANY DATA YOU HAVE STORED ON BRAINFALL’S SYSTEMS MAY NOT BE RETRIEVED LATER.
N. CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES.
O. EUROPEAN USERS.
By using the Brainfall Services, Users in the European Union understand and consent to the processing of personal information in the United States.
P. NOTICES TO BRAINFALL.
You may notify us by e-mail at firstname.lastname@example.org.
Q. OTHER TERMS.
If any part of these terms and conditions are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision, and the remainder of the agreement shall continue in effect. A printed version of these terms and conditions and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these terms and conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. All rights not expressly granted herein are reserved.
Brainfall may assign this contract, in whole or in part, at any time with or without notice to you. You may not assign this contract, or any part of it, to any other party. Any attempt by you to do so is void. ANY CLAIM RELATED TO THIS CONTRACT OR THE SOFTWARE AND SERVICE MUST BE BROUGHT WITHIN ONE YEAR. THE ONE-YEAR PERIOD BEGINS ON THE DATE WHEN THE CLAIM FIRST COULD BE FILED. IF IT IS NOT, THEN THAT CLAIM IS PERMANENTLY BARRED. THIS APPLIES TO YOU AND YOUR SUCCESSORS. IT ALSO APPLIES TO US AND OUR SUCCESSORS AND ASSIGNS. The failure of Brainfall to exercise or enforce any right or provision of the terms and conditions shall not constitute a waiver of such right or provision. The section titles in these terms and conditions are for convenience only and have no legal or contractual effect.