BrainyTap - Terms of Service
PLEASE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF SERVICE FOR THE BRAINYTAP APP BEFORE USING IT. BY CONTINUING TO USE THE APP OR ANY SERVICE ON THE APP, YOU SIGNIFY YOUR ACCEPTANCE OF THE APP.
BrainyTap ("We", or "Us" or “Our”)provides the BrainyTap App and various related services (collectively, the "App") to you, the user, subject to your compliance with all the terms, conditions, and notices contained or referenced herein (these "Terms of Service"), as well as any other written agreement between Us and you. In addition, when using particular services or materials on the App, you signify your ACCEPTANCE OF THESE TERMS OF SERVICE and shall be subject to any posted rules applicable to such services or materials that may contain terms and conditions in addition to those in these Terms of Service. All such guidelines or rules are hereby incorporated by reference into these Terms of Service.
These Terms of Service are effective as of 27-4-2016. We expressly reserve the right to change, amend, remove or add to these Terms of Service from time to time and at any time without notice to you. Such modifications shall be effective immediately. You acknowledge and agree that it is your responsibility to continue to review the App and these Terms of Service from time to time and to familiarize yourself with any modifications whenever accessing, linking to, or using the App. Your continued use of the App after such modifications will constitute acknowledgement of the modified Terms of Service and agreement to abide and be bound by the modified Terms of Service. If, at any time, you do not wish to accept these Terms of Service, you may not access, link to, or use the App. Any terms and conditions proposed by you which are in addition to or which conflict with these Terms of Service are expressly rejected by Us and shall be of no force or effect. As used in these Terms of Service, references to Our "Affiliates" include Our owners, subsidiaries, affiliated companies, officers, directors, suppliers, partners, sponsors, and advertisers, and includes (without limitation) all parties involved in creating, producing, and/or delivering this App and/or its contents.
We make various services available on the App including, but not limited to:
1. A System and method for creating games by adding photos and recording questions about them. The game structure and technical format may only be created and played by using a player or a game development platform, developed or approved by Us.
2. Original educational and entertaining games for kids, created by Us or a third party which was approved by Us and other like services. You are responsible for providing, at your own expense, all equipment necessary to use the services, including a computer, modem, and Internet access (including payment of all fees associated with such access). We reserve the sole right to either modify or discontinue the App, including any of the App’s features, at any time with or without notice to you. We will not be liable to you or any third party should We exercise such right. Any new features that augment or enhance the then-current services on the App shall also be subject to these Terms of Service.
Your use of the App is subject to all applicable laws and regulations, and you are solely responsible for the substance of your communications through the App. By posting information in or otherwise using any communications service, chat room, message board, newsgroup, software library, or other interactive service that may be available to you on or through the App, you agree that you will not upload, share, post, or otherwise distribute or facilitate distribution of any content -- including text, communications, software, images, sounds, data, or other information -- that:
a. is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates Our rules or policies;
b. victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
c. infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
d. constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as "spamming"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
e. contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party;
f. impersonates any person or entity, including any of Our employees or representatives.
We neither endorse nor assume any liability for the contents of any material uploaded or submitted by third party users of the App. We generally do not pre-screen, monitor, or edit the content posted by users of communications services, chat rooms, message boards, newsgroups, software libraries, or other interactive services that may be available on or through the App. However, We and Our agents have the right at their sole discretion to remove any content that, in Our judgment, does not comply with these Terms of Service and any other rules of user conduct for the App, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such content. You hereby consent to such removal and waive any claim against Us arising out of such removal of content. See "Use of Your Materials" below for a description of the procedures to be followed in the event that any party believes that content posted on the App infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party.
In addition, you may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all areas of the App may be available to you or other authorized users of the App. You shall not interfere with anyone else use and enjoyment of the App or other similar services. Users who violate systems or network security may incur criminal or civil liability. You agree that We may at any time, and at Our sole discretion, terminate your membership, account, or other affiliation with the App without prior notice to you for violating any of the above provisions. In addition, you acknowledge that We will cooperate fully with investigations of violations of systems or network security at other Apps, including cooperating with law enforcement authorities in investigating suspected criminal violations.
The App may link you to other Apps on the Internet or otherwise include references to information, documents, software, materials and/or services provided by other parties. These Apps may contain information or material that some people may find inappropriate or offensive. These other Apps and parties are not under Our control, and you acknowledge that We are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such Apps, nor are We responsible for errors or omissions in any references to other parties or their products and services. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with, the App or party by Us, or any warranty of any kind, either express or implied.
Copyright (c) 2016 BrainyTap All Rights Reserved. For purposes of these Terms of Service, "content" is defined as any information, data, communications, software, photos, video, graphics, music, sounds, and other material and services that can be viewed by users on the App. This includes message boards, chat, and other original content.
By accepting these Terms of Service, you acknowledge and agree that all content presented to you on the App is protected by copyrights, trademarks, service marks, patents and/or other proprietary rights and laws of Hong Kong, the US and Israel, and is the sole property of BrainyTap and/or its Affiliates. You are only permitted to use the content as expressly authorized by Us or the specific content provider. Except for a single copy made for personal use only, you may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any documents or information from the App in any form or by any means without prior written permission from Us or the specific content provider, and you are solely responsible for obtaining permission before reusing any copyrighted material that is available on the App.
Any unauthorized use of the materials appearing on the App may violate copyright, trademark, service mark and other applicable laws and could result in criminal or civil penalties. Neither We nor Our Affiliates warrant or represent that your use of materials displayed on, or obtained through, the App will not infringe the rights of third parties. See "User’s Materials" below for a description of the procedures to be followed in the event that any party believes that content posted on the App infringes on any patent, trademark, service mark, trade secret, copyright, right of publicity, or other proprietary right of any party. The following are registered trademarks, trademarks or service marks of BrainyTap or its Affiliates: BrainyTap. All custom graphics, icons, logos and service names are registered trademarks, trademarks or service marks of BrainyTap or its Affiliates. All other trademarks or service marks are property of their respective owners. You agree to protect the proprietary rights of BrainyTap and its Affiliates having rights in the content of the App during and after the term of this agreement and to comply with all reasonable written requests made by BrainyTap or its Affiliates to protect Our or others’ contractual, statutory and common law rights in the content. All the present and future rights in and to patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to the content of the App (the Intellectual Property Rights”) shall, as between you and Us, at all times be and remain the sole and exclusive property of BrainyTap. All present and future rights in and title to the content of the App are expressly reserved to BrainyTap for its exclusive use. You may not copy or make any use of the content of the App or any portion thereof. You shall not use the Intellectual Property Rights or the content of the App, or the name of any individual participant in, or in contributor to the content, or any variations or derivatives thereof, for any purpose, without Our prior written approval. Nothing in these Terms of Service grants you any right to use any trademark, service mark, logo, and/or the name of BrainyTap or its Affiliates.
Please do not submit confidential or proprietary information to Us unless We have mutually agreed in writing otherwise. We are also unable to accept your unsolicited ideas or proposals, so please do not submit them to Us in any circumstance. We respect the intellectual property of others, and We ask you to do the same. Accordingly, We reserve the right at all times (but will not have an obligation) to remove, suspend or terminate users of the App, and to reclaim usernames without liability to you. If you or any user of the App believes its copyright, trademark or other property rights have been infringed by a posting on the App, you or the user should send notification to Our Designated Agent (as identified below) immediately. To be effective, the notification must include:
● 1. Identify in sufficient detail the copyrighted work that you believe has been infringed upon or other information sufficient to specify the copyrighted work being infringed).
● 2. Identify the material that you claim is infringing the copyrighted work listed in item #1 above.
● 3. Provide information reasonably sufficient to permit Us to contact you (email address is preferred).
● 4. Provide information, if possible, sufficient to permit Us to notify the owner/administrator of the allegedly infringing webpage or other content (email address is preferred).
● 5. Include the following statement: "I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law."
● 6. Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
● 7. Sign the paper.
● 8. Send the written communication to the following address:
Designated Agent for Claimed Infringement: Address: firstname.lastname@example.org
You acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, We may immediately remove the identified materials from the App without liability to you or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the Hong Kong Intellectual Property Department of other relevant offices for adjudication.
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF BRAINYTAP, ITS AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS AND LICENSORS. Each of the paragraphs below only applies up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of implied warranties and as a result the contents of this section 7 may not apply to you.
ALL MATERIALS AND SERVICES ON THE APP ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE SERVICES AND MATERIALS WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES AND MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR MATERIALS WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE APP FROM US OR OUR AFFILIATES WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS. THIS App COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. WE MAY MAKE CHANGES TO THE MATERIALS AND SERVICES AT THIS APP, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS LISTED HEREIN, AT ANY TIME WITHOUT NOTICE. THE MATERIALS OR SERVICES AT THIS APP MAY BE OUT OF DATE, AND WE MAKE NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES. THE USE OF THE SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THIS APP IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
Through your use of the App, you may have the opportunities to engage in commercial transactions with other users and vendors. You acknowledge that all transactions relating to any merchandise or services offered by any party, including, but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions, are agreed to solely between the seller or purchaser of such merchandize and services and you. WE MAKE NO WARRANTY OR REPRESENTATION REGARDING ANY TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THE APP, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THIS APP FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US OR ANY OTHER OF OUR AFFILIATES.
Content available through the App often represents the opinions and judgments of an information provider, App user, or other person or entity not connected with Us. We do not endorse, nor are We responsible for the accuracy or reliability of, any opinion, advice, or statement made by anyone other than an authorized BrainyTap spokesperson speaking in his/her official capacity. Please refer to the specific editorial policies posted on various sections of the App for further information, which policies are incorporated by reference into these Terms of Service. You understand and agree that temporary interruptions of the services available through the App may occur as normal events. You further understand and agree that We have no control over third party networks you may access in the course of the use of the App, and therefore, delays and disruption of other network transmissions are completely beyond Our control. You understand and agree that the services available on the App are provided "AS IS" and and “AS AVAILABLE” that We disclaim all responsibility and liability for the timeliness, deletion, mis-delivery, or failure to store any user communications or personalization settings, security or reliability of the App or any harm that results from your use of or access to the App. No advice or information, whether oral or written, obtained from Us or through the App, will create any warranty or representation not expressly made herein.
IN NO EVENT SHALL WE, OUR AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS AND LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE APP OR OF ANY WEB APP REFERENCED OR LINKED TO FROM THE APP. FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THE APP OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THE APP, INCLUDING WITHOUT LIMITATION THE PROCESSING OF ORDERS.
IN NO EVENT HALL THE AGGREGAT LIABILITY OF US EXCEED THE GREATER OF TEN U.S. DOLLARS (U.S.$10.00) OR THE AMOUNT YOU PAID US, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Upon a request by Us, you agree to defend, indemnify, and hold Us and Our Affiliates harmless from all liabilities, claims, and expenses, including attorney fees, that arise from your use or misuse of the App. We reserve the right, at Our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Us in asserting any available defenses.
You are solely responsible for maintaining the confidentiality of your password and account and for any and all statements made and acts or omissions that occur through the use of your password and account. Therefore, you must take steps to ensure that others do not gain access to your password and account. Our personnel will never ask you for your password. You may not transfer or share your account with anyone, and We reserve the right to immediately terminate or suspend your account if you do transfer or share your account.
From time to time, the App may include advertisements offered by third parties. You may enter into correspondence with or participate in promotions of the advertisers showing their products on the App. Any such correspondence or promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions, are solely between you and the advertiser. We assume no liability, obligation or responsibility for any part of any such correspondence or promotion.
Although the App may be accessible worldwide, We make no representation that materials on the App are appropriate or available for use in locations outside Hong Kong, and accessing them from territories where their contents are illegal or is prohibited. Those who choose to access the App from other locations do so on their own initiative and are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with the App is void where prohibited.
You agree that We may, in Our sole discretion, terminate or suspend your access to all or part of the App with or without notice and for any reason, including, without limitation, breach of these Terms of Service or any of our guidelines or rules by you, or creation by you any risk or possible legal exposure for Us. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating your relationship and may be referred to appropriate law enforcement authorities. Upon termination or suspension, regardless of the reasons therefore, your right to use the services available on the App immediately ceases, and you acknowledge and agree that We may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the App. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by Us in connection with such termination or suspension.
Nothing in this section 14 shall affect our rights to change, limit or stop the App without prior notice, as provided above in section 1.
The App (excluding any linked Apps) is controlled by Us from Our offices within Hong Kong, Israel and the US. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of Hong Kong, by accessing the App both of Us agree that the laws of Hong Kong, without regard to the conflicts of laws principles, will apply to all matters relating to the use of the App and the purchase of products and services available through the App. Each of Us agrees and hereby submits to the exclusive jurisdiction and venue the courts of Hong Kong with respect to such matters.
All notices to a party shall be in writing and shall be made either via email or conventional mail. Notices to Us must be sent to the attention of Customer Service at email@example.com if by e-mail. We may broadcast notices or messages through the App to inform you of changes to the App or other matters of importance, and such broadcasts shall constitute notice to you at the time of sending.
These Terms of Service constitute the entire and exclusive agreement and understanding between you and Us concerning the use of and access to the App and supersedes all prior agreements and understandings of the parties with respect thereto (excluding any services or goods for which you have a separate agreement with third parties). These Terms of Service may not be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by you and Us. To the extent that anything in or associated with the App is in conflict or inconsistent with these Terms of Service, these Terms of Service shall take precedence. Notwithstanding the foregoing, We reserve the right to revise these Terms of Service from time to time. The most current version will always be at https://www.brainytap.com/activities/
Any cause of action brought by you against Us or Our Affiliates must be instituted within one year after the cause of action arises or be deemed forever waived and barred. You may not assign your rights and obligations under these Terms of Service to any party, and any purported attempt to do so will be null and void. We may assign Our rights and obligations under these Terms of Service. You agree not to sell, resell, reproduce, duplicate, copy or use for any commercial purposes any portion of the App, or use of or access to the App.
In addition to any excuse provided by applicable law, We shall be excused from liability for non-delivery or delay in delivery of products and services available through the App arising from any event beyond Our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond Our reasonable control, whether or not similar to those which are enumerated above. If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Any failure by Us to enforce or exercise any provision of these Terms of Service or related rights shall not constitute a waiver of that right or provision.
Except as explicitly noted on the App, the services available through the App are offered by BrainyTap located at firstname.lastname@example.org.
If you notice that any user is violating these Terms of Service, please contact Us at email@example.com.
BrainyTap ("Seller") hereby agrees to sell, and You ("Buyer") hereby agree to purchase, goods of the description and quantity described on the checkout window ("Checkout") and incorporated herein by this reference ("Goods") on the terms and conditions set forth in this Agreement.
Buyer agrees to pay the Purchase Price of the Goods as posted on this webApp attached hereto.
The total amount of the Purchase Price shall be payable in full by Buyer according to the payment due date stated at Checkout. Any portion of the Purchase Price unpaid past thirty (30) days shall be considered overdue. All amounts past due are subject to a late charge of the lesser of one and one-half percent (1 1/2%) per month (being eighteen percent (18%) per annum) or the highest lawful rate. In addition, Seller shall have the right to pursue any remedies available at law or as provided herein and shall be entitled to reimbursement from Buyer for Seller's costs of collection, including attorney fees, legal fees and costs and disbursements.
Unless otherwise agreed in writing, delivery shall be made in accordance with Seller's shipping policy in effect on the date of shipment. Delivery dates provided by Seller are estimates only. Seller will make reasonable efforts to deliver in accordance with such dates; however, Seller will not be liable for failure to deliver as estimated. Unless otherwise agreed in writing by Seller, Goods shall be packaged according to Seller's standards and practices.
Seller supplies as its sole warranty the following: All virtual products sold in this application, are for private usage only and are not being transferred as is or in parts or any other way including screenshots and photographs. BrainyTap develops and creates its products with kids, education and fun in mind, the content of the games may vary from game to game and is not to be taken empirical facts or as any assurance for the truth of it, The warranties provided for herein shall be governed by Seller's warranty policies in effect on the date of shipment.
Seller undertakes no responsibility for the quality of the Goods or that the Goods will be fit for any particular purpose for which Buyer may be buying the Goods, except as otherwise provided in this Agreement, and Seller disclaims all other warranties and conditions, express or implied.
SELLER (INCLUDING ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUBCONTRACTORS, ALL OF WHICH ARE REFERRED TO HEREIN COLLECTIVELY AS THE "SELLER AFFILIATES") SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCE TO BUYER OR ANY OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE GOODS OR OTHERWISE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF THE GOODS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE OR REPLACEMENT EQUIPMENT, FACILITIES OR SERVICES, DOWN TIME, BUYER'S TIME, LOST DATA, INJURY TO PROPERTY OR ANY DAMAGES OR SUMS PAID BY BUYER TO THIRD PARTIES, EVEN IF SELLER OR ANY OF THE SELLER AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.
IN NO EVENT SHALL SELLER OR ANY SELLER AFFILIATE BE LIABLE TO BUYER OR ANY OTHER PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS IN EXCESS OF THE NET PURCHASE PRICE OF THE GOODS ACTUALLY DELIVERED TO AND PAID FOR BY BUYER HEREUNDER. SELLER DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE GOODS AND NONE OF SELLER OR ANY SELLER AFFILIATE SHALL HAVE ANY DUTY TO DEFEND, INDEMNIFY, OR HOLD HARMLESS BUYER FROM AND AGAINST ANY OR ALL DAMAGES OR COSTS INCURRED BY BUYER ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR VIOLATION OF COPYRIGHTS BY ANY OF THE GOODS.
Seller shall not be held responsible for any failure of performance to make timely delivery of all or any part of the Goods in the event such failure was due, in whole or in part, to federal, provincial or municipal action, statute, ordinance or regulation, strike or other labor trouble, fire or other damage to or destruction of, in whole or in part, the Goods or the manufacturing facility for the Goods, the lack of or inability to obtain raw materials, labor, fuel, electrical power, water or supplies, or any other cause, act of God, contingency or circumstances not subject to the reasonable control of Seller, which causes delays or hinders the manufacture or delivery of Goods. Seller shall determine in good faith the extent to which it can reasonably control a cause, contingency, or circumstance that affects the performance of its obligations.
Buyer may not assign this Agreement without Seller's written consent. Seller is the sole intended beneficiary of this Agreement. If there is any inconsistency between this Agreement and any other agreement included with or relating to the Goods, this Agreement shall govern. This Agreement may not be modified, altered or amended without the written agreement of Seller. Any additional or altered terms attached to any order submitted by Buyer shall be null and void, unless expressly agreed to in writing by Seller. If any term of this Agreement is illegal or unenforceable, the legality and enforceability of the remaining provisions shall not be affected or impaired. This Agreement shall be interpreted under the laws of the State of Virginia, without giving effect to conflicts-of-law rules; and in the event of a dispute under this Agreement; Buyer submits to the exclusive jurisdiction and venue of the courts of the Commonwealth of Virginia and hereby waives any objection to such jurisdiction and venue.
BrainyTap ("We" or "Us" or "Our") offers the use of its blogging and message board services (along with the content posted thereon, the "Services") subject to the terms and conditions of use (the "Terms") contained herein. All references herein to "We," "Us," or "Our" are intended to include BrainyTap and any other affiliated companies. By accessing, creating or contributing to any blogs or messages hosted by Us (the "Blog"), and in consideration for the Services We provide to you, you agree to abide by these Terms. Please read them carefully before posting to or creating any Blog. We reserve the right to change, at any time, at Our sole discretion, the Terms under which these Services are offered. You are responsible for regularly reviewing these Terms for changes. Your continued use of the Services constitutes your acceptance of all such Terms. If you do not agree with these Terms, please do not use the Services.
You understand that all content posted to the Blog (the "Content") is the sole responsibility of the individual who originally posted the content. You understand, also, that all opinions expressed by users of this App are expressed strictly in their individual capacities, and not as Our representatives or any of Our sponsors or partners. The opinions that you or others post in the Blog do not necessarily reflect Our opinions.
(a) By posting your Content using the Services, you are granting an unrestricted, irrevocable, non-exclusive, royalty-free, perpetual, worldwide, and fully transferable, assignable, and sublicensable right and license to use, copy, reproduce, modify, adapt, publish, translate, create collective or derivative works from, distribute, perform and display your Content in whole or in part and to incorporate it in other works in any form, media, or technology now known or later developed. You further warrant that all so-called moral rights in the content have been waived.
(b) By posting content to the Blog, you warrant and represent that you either own or otherwise control all of the rights to that content, including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the content, or that your use of the content is a protected fair use. You agree that you will not knowingly provide material and misleading false information. You represent and warrant also that the content you supply does not violate these Terms. It is your sole responsibility to ensure that your postings do not disclose confidential and/or proprietary information, including personal financial information, information covered by a nondisclosure agreement, and information that you are not authorized to disclose. We caution you not to disclose personal information about yourself or your children, such as social security numbers, credit card numbers, etc.
(c) You agree to indemnify and hold Us and Our affiliated companies, and their directors, officers and employees, harmless for any and all claims or demands, including reasonable attorney fees, that arise from or otherwise relate to your use of the Blog, any content you supply to the Blog, or your violation of these Terms or the rights of another.
(a) You agree that We will not be liable, under any circumstances and in any way, for any errors or omissions, loss or damage of any kind incurred as a result of use of any content posted on this App. You agree that you must evaluate and bear all risks associated with the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content. You agree not to collect information about others, including e-mail addresses, or to use information obtained from the Services to send other users unsolicited e-mail of any kind.
(b) The Blog is provided for informational purposes only; We shall not be responsible or liable for the accuracy or availability of any information appearing or available on the Blog.
(c) Blog postings may provide links to other webApps on the Internet. We are not responsible or liable for such content and We make no express or implied warranty about the accuracy, copyright compliance, legality, merchantability, or any other aspect of the content of such postings. We are not responsible or liable for any advertising, products, or other materials on or available from such webApps or resources. The inclusion of links does not imply endorsement of the webApps by Us or any association with their operators.
(d) We may enable you to establish an account with a username and password to access and use the Services. If so, you are responsible for maintaining the strict confidentiality of your password, and you are responsible for any activity occurring through use of your account and password. You agree to immediately notify Us of any unauthorized use of your password or account or any other breach of security and ensure that you exit from your account at the end of each session. We are not responsible or liable for any loss or damage arising from your failure to comply with this provision.
Collecting personal information from children under the age of 18 ("minor children") through the Services or the Blog is prohibited. No Content should be directed toward minor children. Minor children are not eligible to use the App, and We ask that they do not submit any personal information to Us.