Updated: September 24th, 2012
The site located at brainhq.positscience.com (the “Site”) and any brainHQ mobile or tablet application (“App”) are copyrighted works belonging to Posit Science Corporation (“Posit Science,” “we,” “us,” or “our”). Your use of the Site, App, and the BrainHQ exercises and services offered through the Site and/or the App (collectively, the “Offerings”) is subject to the terms and conditions set forth below (these “Terms and Conditions”). PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY ACCESSING OR USING THE SITE, APP, OR OFFERINGS OR CREATING AN ACCOUNT (DEFINED BELOW), YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND REPRESENT AND WARRANT THAT YOU ARE (A) AT LEAST 18 YEARS OLD OR (B) YOU ARE AT LEAST 15 YEARS OLD AND HAVE YOUR PARENT’S OR LEGAL GUARDIAN’S PERMISSION TO USE THE SITE, APP, AND OFFERINGS IN ACCORDANCE WITH SECTION 4 BELOW (A “PERMITTED USER”). IF YOU (X) ARE UNDER THE AGE OF EIGHTEEN AND NOT A PERMITTED USER OR (Y) DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THIS SITE, THE APP, OR THE OFFERINGS OR CREATE AN ACCOUNT.
THESE TERMS AND CONDITIONS CONTAIN VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AND LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU, A BINDING ARBITRATION AGREEMENT THAT WAIVES YOUR RIGHT TO A JURY TRIAL, A CLASS ACTION WAIVER, A CHOICE OF LAW PROVISION, AND A FORUM SELECTION CLAUSE.
To access and use certain features of the Site, the App, or the Offerings, you may be required to agree to certain additional terms and conditions and to register for those features or Offerings. All such additional terms and conditions are hereby made a part of these Terms and Conditions. In the event of any conflict or inconsistency between the terms and conditions contained herein and any additional terms and conditions, the additional terms and conditions will control but solely with respect to the subject matter thereof.
No Medical Advice. The Site Content (defined in Section 5.1), which includes any risk estimates or other reports generated by the Offerings (collectively, "Your Report"), are for informational purposes only and are not intended to substitute for professional medical advice, diagnosis, or treatment. You should seek the advice of a physician or other qualified health provider with whom you have such a relationship if you have questions regarding any medical condition or if you are experiencing any symptoms of or believe you may have any medical condition, regardless of any information contained within Your Report. You should not ignore professional medical advice or delay in seeking it because of Your Report or any other Site Content. Furthermore, you should not interpret Your Report or any other Site Content as recommending any specific treatment plan, product or course of action. You should always consult your physician or other qualified health provider before starting any new treatment or stopping any treatment that has been prescribed for you by your physician or other qualified health provider. If you believe you are experiencing any negative effects or illness from using the Offerings, App, or Site, you should immediately stop such use and contact your physician or other qualified health provider and Posit Science at the address specified below.
Account. In order to access and use certain Offerings, you must register for an account on the Site or App (“Account”) and provide certain information about yourself as prompted by the registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. Posit Science may suspend or terminate your Account in accordance with Section 16. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Posit Science of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. Posit Science cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
Fees. We provide certain Offerings on a paid subscription basis (each, a “Paid Offering”). Upon using any Paid Offering, you will be responsible for the payment of the applicable fees posted on our Site. You acknowledge that we reserve the right to change our fees from time to time in our discretion, provided that any such change will not apply until your next subscription period. We will notify you of such changes by posting a notice on our Site or sending you an e-mail notice to the e-mail address you provided for your Account. All subscriptions automatically renew upon the expiration of the then-current subscription period, unless cancelled earlier, which you may do by contacting us as set forth in Section 22 below. Posit Science will automatically bill your credit card or other payment method on the date that your subscription to the applicable paid Offering begins, and each date thereafter on which a successive subscription period begins, until you cancel your subscription to that paid Offering. You hereby authorize Posit Science to bill your credit card or other payment method as described in this Section. You are responsible for paying all fees and applicable taxes associated with our Paid Offerings in a timely manner with a valid payment method. If your payment method fails or any amounts owed to Posit Science are past due, we may collect fees owed using other collection mechanisms (including retaining collection agencies and legal counsel) or suspend your Account and/or access to any or all (whether or not a Paid Offering) Offerings.
InGear. Posit Science may offer a program for teenage drivers and their parents to receive incentives or benefits from certain auto insurers for using the Offerings (“InGear”). If you are a parent and you and your teenager driver are eligible to participate in the InGear, you may register for the InGear on the Site. By registering, (a) you represent and warrant that you are the parent or legal guardian of the teen driver named in the registration (your “Teen Driver”) and that the Teen Driver is at least 14 years old, (b) you expressly consent to Posit Science sending your Teen Driver an email to enable him or her to register for InGear, (c) you are granting your Teen Driver permission to use the Site, App, and Offerings, and (d) you agree to be bound by these Terms and Conditions with respect to your Teen Driver’s participation in the InGear and that you will be responsible for your Teen Driver’s compliance with these Terms and Conditions and any activities that occur under your Teen Driver’s Account.
Site Content; Ownership; and License. Posit Science owns and provides the Site, App, and Offerings. Except for any information or content submitted by users of the Site, App, or Offerings but excluding Feedback (defined below) (collectively, “User Content”), the content and information available on the Site, App, and Offerings (collectively, “Site Content”) is owned by Posit Science and its licensors. Subject to the terms and conditions contained herein, Posit Science grants you a limited license to: (a) reproduce portions of the Site Content (other than the Offerings) for the sole purpose of reviewing such Site Content as a visitor to the Site; (b) to view and print one or more copies of Your Report and a single copy of any other Site Content, each for your personal, non-commercial use; (c) to distribute copies of Your Report to anyone of your choosing; (d) access and use the Offerings solely for your personal, non-commercial purposes ; and (e) install and use the App, in executable object code format only, solely on your own mobile or tablet device and for your personal, non-commercial use. You agree not to remove any copyright, trademark or other proprietary rights notice contained in or on the Site Content, Site, App or any Offerings, or "frame" or "mirror" any part of our Site or App or any Offering without prior written consent from Posit Science. Any unauthorized use, reproduction, modification, distribution, display, or performance of the Site, App, any Site Content or any Offering is strictly prohibited. You shall not disassemble, reverse compile or reverse engineer any part of the Site, App, Site Content, or Offerings. Posit Science and its licensors reserve all rights not granted in these Terms and Conditions. There are no implied licenses granted in these Terms and Conditions.
User Content; Ownership; and License. We do not claim ownership in any of your User Content. You hereby grant us a worldwide, perpetual, irrevocable, non-exclusive, fully-paid and royalty-free license, with the right to sublicense through multiple levels, to store, reproduce, perform, display, transmit, distribute, create derivative works of, and otherwise use your User Content in connection with providing our Site, App, Site Content, and/or Offerings. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. You should only upload your User Content to our Site, App, or Offerings (a) for which you are willing to grant the licenses described above and (b) for which you have sufficient rights to grant the licenses described above.
Feedback. If you provide any comments, testimonials, feedback or suggestions to Posit Science regarding the Site, App, any Offering, any Site Content, or any of Posit Science’s services (collectively, “Feedback”), Posit Science may use such Feedback for any purpose. So that we may incorporate such Feedback into Posit Science’s Site, App, Offerings, Site Content, and/or Posit Science’s services, Posit Science alone will own all right, title and interest, including all related intellectual property rights, in and to all such Feedback, and in consideration for your use of the Site, App, Offerings, and Site Content, you hereby assign such Feedback to Posit Science free of charge.
Backups. We are not obligated to back up any of your User Content or Your Reports. You are solely responsible for creating backup copies of and replacing any of your User Content that you post or store on our Site, App, or Offerings or Your Reports, at your sole cost and expense.
App Stores. You acknowledge and agree that the availability of the App is dependent on the third party from which you received the App (“App Store”), e.g., the Apple App Store. You acknowledge that these Terms and Conditions are between you and Posit Science and not with the App Store. Each App Store may have its own terms and conditions to which you must agree before downloading the App from it. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable terms and conditions of the applicable App Store.
Apple App Store Terms and Conditions. The following additional terms and conditions apply to you if you are using an App from the Apple App Store. To the extent the other Terms and Conditions are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 5.6, the more restrictive or conflicting terms and conditions in this Section 5.6 apply, but solely with respect to Apps from the Apple App Store.
Acknowledgement: Posit Science and you acknowledge that Terms and Conditions are concluded between Posit Science and you only, and not with Apple, and Posit Science, not Apple, is solely responsible for the App and the content thereof. To the extent these Terms and Conditions provide for usage rules for the App that are less restrictive than the Usage Rules set forth for the App in, or otherwise is in conflict with, the Apple App Store Terms of Service, the more restrictive or conflicting Apple term applies.
Scope of License: The license granted to you for the App is limited to a non-transferable license to use the App on an iOS product that you own or control and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
Maintenance and Support: Posit Science is solely responsible for providing any maintenance and support services with respect to the App, as specified in these Terms and Conditions (if any), or as required under applicable law. Posit Science and you acknowledge that the Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
Warranty: Posit Science is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Posit Science's sole responsibility.
Product Claims: Posit Science and you acknowledge that Posit Science, not Apple, is responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. These Terms and Conditions do not limit Posit Science’s liability to you beyond what is permitted by applicable law.
Intellectual Property Rights: Posit Science and you acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringes that third party's intellectual property rights, as between Posit Science and Apple, Posit Science, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address: Posit Science's contact information for any end-user questions, complaints or claims with respect to the App is set forth in Section 22.
Third Party Terms of Agreement: You must comply with applicable third party terms of agreement when using the App.
Third Party Beneficiary: Posit Science and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms and Conditions, and that, upon your acceptance of the terms and conditions of these Terms and Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against you as a third party beneficiary thereof.
Acceptable Use and Conduct. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You agree that you will use the Site, App, Site Content, and Offerings in a manner consistent with any and all applicable laws and regulations.
Prohibited Content. You agree that you will not post, exchange, make available, provide, or process any Prohibited Content on the Site, App, or Offerings. “Prohibited Content” means content that: (a) is offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) bullies, defames, harasses or advocates stalking of, or intimidates another person; (c) involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, or “spamming;” (d) is false or misleading or promotes, endorses or furthers illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (e) uses another person’s content without a license to do so, whether or not the intellectual property is registered (or filed for registration) in any country; (f) promotes, copies, performs or distributes an illegal or unauthorized copy of another person’s work, whether it is protected by copyright or trade secret law, or not, such as, without limitation, presenting the work of a third party as your own (plagiarism) or providing pirated music, videos, or movies, or links to such pirated music, videos, or movies; (g) is involved in the exploitation of persons under the age of eighteen (18) in a sexual or violent manner, or solicits personal information from anyone under eighteen (18); (h) provides instructional information about illegal activities such as, without limitation, making or buying illegal weapons or substances, violating someone’s privacy, or providing or creating computer viruses and other harmful code; (i) solicits passwords or personally identifying information for commercial or unlawful purposes from other users; (j) except as approved by us in writing, involves commercial activities and/or promotions such as contests, sweepstakes, barter, advertising, or pyramid schemes; (k) contains viruses, Trojan horses, worms, time bombs, or similar software; (l) violates any applicable law or regulation; or (m) otherwise violates these Terms and Conditions or creates liability for us. You represent and warrant that: (1) you own your User Content or otherwise have the right to grant the licenses set forth in these Terms and Conditions; and (2) your User Content does not violate the privacy rights, publicity rights, copyright rights, or other proprietary rights or intellectual property rights of any person.
Breach. Any use of our Site, App, Site Content, or Offerings in violation of these Terms and Conditions may result in, among other things, immediate suspension or termination of your Account and/or suspension or termination of your rights to use our Site, App, Site Content, or Offerings. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect our systems, affiliates, service providers, partners, and other users, or to ensure the integrity and operation of our business and systems, we may access and disclose any information or content we consider necessary or appropriate, including your Account information (i.e. name, e-mail address, etc.), IP address and traffic information, usage history, and your User Content.
Enforcement by Us. We have the right (but not the obligation) to review any or all portions of your User Content and delete (or modify) any of your User Content from our Site, App, or Offerings for any reason, including if we believe, in our sole judgment, your User Content violates these Terms and Conditions or is Prohibited Content, or may otherwise threaten the safety of, or harm any other person, or create liability for us or any other person. We reserve the right (but have no obligation) to investigate and take appropriate action, including removing the Prohibited Content from our Site, App, or Offerings (or modifying it), suspending or terminating your Account and/or suspending or terminating the provision of our Site, App, Site Content, or Offerings, and reporting you to law enforcement authorities, in our sole discretion, if you violate this provision or any other provision of these Terms and Conditions.
No Disruption. You will not: (a) cover or obscure any advertisements on any web page that is part of our Site or Offerings via HTML/CSS, scripting, or any other means; (b) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (c) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, App, or Offerings or violate the regulations, policies or procedures of such networks; (d) attempt to gain unauthorized access to the Site, App, or Offerings, or other computer systems or networks connected to or used together with the Site or Offerings, through password mining or other means; (e) harass or interfere with another user’s use and enjoyment of the Site, App, or Offerings; or (f) introduce software or automated agents or scripts to the Site, App, or Offerings so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site, App, or Offerings.
Public Areas and Group Areas. “Public Areas" are those areas of our Site, App, or Offerings such as chat rooms or forums, message boards, bulletin boards, news groups, and pages that include testimonials, to which you may send communications that are publicly available to anyone who may have access to that public area. A "Group Area" is an area of our Site, App, or Offerings that may be accessed only by the invited members of a group who are logged into their Accounts. A “Friend Network” is the social network made up of you and your “friends” who use the Offerings. You should be careful about your communications in Public Areas because these communications disclose to the public your Account username and any personally identifiable information you choose to disclose. Similarly, you should be careful about your communications in Group Areas because these communications disclose to the other members of the group your Account username and any personally identifiable information you choose to disclose. You should also be careful about whom you include as part of your Friend Network because they will have access to certain aspects of your user profile, including your Account username, certain of your activities and achievements on the Offerings, and any content you post to your Friend Network, including any personally identifiable information you choose to disclose. Any information you include in any public profile, such as your message board profile, is also available to others. You (and not Posit Science) are solely responsible for your communications and the consequences of posting these communications to any Public Area, Group Area, and/or Friend Network.
Third Party Sites; Other Users
Other Users. Each user of the Site, App, or Offerings is solely responsible for any and all of his or her User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other users of our Site, App, or Offerings are solely between you and such user. You agree that Posit Science will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any user, we are under no obligation to become involved.
Release. You hereby release and forever discharge us (and our officers, directors, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other users of our Site, App, or Offerings or Third Party Sites. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, 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.”
Copyright Policy. Posit Science respects the intellectual property of others and asks that users of our Site, App, and Offerings do the same. In connection with our Site, App, and Offerings, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site, App, and Offerings who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site, App, or Offerings, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
your physical or electronic signature;
identification of the copyrighted work(s) that you claim to have been infringed;
identification of the material on our Site, App, or Offerings that you claim is infringing and that you request us to remove;
sufficient information to permit us to locate such material;
your address, telephone number, and e-mail address;
a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Posit Science is:
Posit Science Corporation
77 Geary Street, Suite 303
San Francisco, CA 94108
Trademarks. All trademarks, logos and service marks (collectively, “Marks”) displayed on the Site, App, Site Content, and/or the Offerings are Posit Science’s property or the property of other third parties. You are not permitted to use these Marks without Posit Science’s prior written consent or the consent of the third party that owns the Marks.
WARRANTY DISCLAIMER. POSIT SCIENCE IS PROVIDING THE SITE, APP, OFFERINGS, SITE CONTENT, AND ANY SERVICES PROVIDED BY POSIT SCIENCE HEREUNDER ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR USE AT YOUR OWN RISK. POSIT SCIENCE (AND ITS SUPPLIERS) DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND QUIET ENJOYMENT. POSIT SCIENCE (AND ITS SUPPLIERS) DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE SITE CONTENT OR THAT THE SITE, APP, OFFERINGS, SITE CONTENT, OR ANY SERVICES PROVIDED BY POSIT SCIENCE HEREUNDER WILL BE PROVIDED FREE OF VIRUSES OR OTHER HARMFUL CODE, UNINTERRUPTED, OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED. THE SITE CONTENT IS PROVIDED WITH THE UNDERSTANDING THAT NEITHER POSIT SCIENCE NOR ITS LICENSORS OR SUPPLIERS ARE ENGAGED IN RENDERING MEDICAL, LEGAL, OR OTHER PROFESSIONAL SERVICES OR ADVICE. THE SITE CONTENT IS INTENDED SOLELY FOR YOUR INFORMATIONAL PURPOSES AND IS NOT INTENDED AS MEDICAL ADVICE, OR TO BE USED FOR MEDICAL DIAGNOSIS OR TREATMENT, FOR ANY PROBLEM. IT IS ALSO NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE AND SERVICES FROM A QUALIFIED HEALTHCARE PROVIDER FAMILIAR WITH YOUR UNIQUE FACTS.
LIMITATION OF LIABILITY. IN NO EVENT SHALL POSIT SCIENCE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS, THE APP, THE SITE, ANY OFFERING, THE SITE CONTENT, OR ANY SERVICE PROVIDED BY POSIT SCIENCE HEREUNDER, INCLUDING ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT POSIT SCIENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ON ANY THEORY OF LIABILITY. POSIT SCIENCE’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS, THE APP, THE SITE, ANY OFFERING, THE SITE CONTENT, OR ANY SERVICE PROVIDED BY POSIT SCIENCE HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF THE AMOUNTS PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM OR ONE HUNDRED DOLLARS ($100). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU ACKNOWLEDGE THAT OUR SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY UNDER THESE TERMS AND CONDITIONS.
Exclusions. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so those specific limitations that are not allowed in Sections 12 and/ or 13 above, as applicable, may not apply to you. The duration of any such warranty that may not be excluded is limited to a period of thirty (30) days after your first use of our Site, App, Offering, or service, as applicable, or, if such limitation on duration is not permitted under applicable law, to the minimum period permitted under applicable law.
Indemnification. You agree to indemnify and hold Posit Science and its directors, officers, employees, agents, successors, and assigns (collectively, the “Indemnified Parties”) harmless from and against any claim, liability, loss, injury, damage, cost, or expense (including attorneys’ fees) incurred by Posit Science or any Indemnified Party arising out of or relating to your: (a) use of the Site, App, Offerings, or Site Content; (b) your User Content; (c) your violation or breach of any provision in these Terms and Conditions or your violation of any rights of a third party; or (d) your violation of applicable laws or regulations.
Termination. These Terms and Conditions shall remain in full force and effect for any period of time in which you are a user. You may terminate your Account at any time and for any reason by providing notice of termination to us by sending an email to email@example.com. We may suspend or terminate your Account and/or suspend or terminate providing our Offering(s) to you (a) immediately, if we, in our sole discretion, believe that you are in breach of these Terms and Conditions; (b) at any time, if we decide, in our sole discretion, to stop providing the applicable Offering by sending an e-mail to you at the e-mail address that you have provided for your Account or posting a notice on our Site; or (c) for any or no reason, by sending an e-mail to you at the e-mail address that you have provided for your Account. If you terminate your Account, we have no obligation to refund you any fees. If we terminate your Account without cause, we will refund you a pro rata portion of any fees that you have paid for the unused portion of the applicable subscription period(s). You understand that any termination of these Terms and Conditions and/or your Account may involve deletion from our databases of the information you provided in connection with your Account. We will have no liability whatsoever to you for any suspension or termination of your Account or any suspension or termination of our Site, App, Site Content, Offerings, or any deletion of any information you have provided to us. We may modify our Site, App, Site Content, or Offerings at any time, for any reason, in our sole discretion. The following Sections will survive any termination of these Terms and Conditions: 1, 3 (to the extent any amounts are owed by you as of termination of these Terms and Conditions), 5.1 (but not the license granted therein to you), 5.2, 5.3, 6, 7, 8, and 10 through 21.
Amendment. These Terms and Conditions may be amended by Posit Science from time to time. If we make material changes to these Terms and Conditions, we may notify you by posting the revised Terms and Conditions on our Site or notifying you at your primary email address (if any, as specified in your Account information). You are responsible at all times for updating your Account to provide to us your most current e-mail address. If the last e-mail address that you have provided to us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms and Conditions will be effective immediately for new users of our Site, App, Site Content, or Offerings; otherwise these changes will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you or thirty (30) calendar days following our posting of a notice on our Site. Your continued use of our Site, App, any Offering, or any Site Content thirty (30) calendar days after the changes are first notified by Posit Science as described above will constitute your agreement to such changes. If you object to any change, your sole recourse shall be to immediately terminate your Account and cease using the Site, App, all Offerings, and the Site Content. Except as otherwise provided in this Section, no amendment to these Terms and Conditions will be valid.
Intended Audience. Our Site, App, and Offerings are maintained by Posit Science from its offices within the United States. Posit Science makes no representation that materials in our Site, App or any Offering are appropriate or available for use in other locations. Those who choose to access this Site, the App, or any Offerings from other locations do so on their own initiative and are responsible for compliance with local or national laws, as applicable. The software, technology and other information from this Site, App, and Offerings are further subject to United States export controls and, potentially, the import laws of your jurisdiction. No software, technology or other information from this Site, App, or Offerings may be downloaded or otherwise exported or re-exported to any person or entity on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders or otherwise prohibited by United States export control laws. By accessing or using any software, technology or other information from this Site, App, or any Offering in any manner whatsoever, you represent and warrant that you are not on any such list or located in, under the control of, or a national or resident of any such country.
General Provisions. Our failure to exercise or enforce any right or provision of these Terms and Conditions shall not operate as a waiver of such right or provision. If any provision in these Terms and Conditions is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms and Conditions will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. The section titles in these Terms and Conditions are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. These Terms and Conditions, and any other additional terms located on particular pages of this Site or App, constitute the entire agreement between you and Posit Science regarding the use of the Site, App, Offerings, and Site Content.
Mandatory Arbitration, Jury Trial and Class Action Waiver, and Forum Selection Clause
In the event of any claim, count, demand, or cause of action arising between you and Posit Science arising under or related in any way to these Terms and Conditions or the Site, App, any Offering, or Site Content, (“Dispute”), you and Posit Science agree the Dispute shall exclusively be finally settled through binding arbitration by one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
This agreement to arbitrate is intended to be interpreted broadly, and includes Disputes between you and Posit Science that arose in the past or may arise in the present or future. As modified by these Terms and Conditions, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
You and Posit Science must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by you and Posit Science, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY YOU OR POSIT SCIENCE MUST BE BROUGHT IN EACH PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Posit Science will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (g) the arbitration will be confidential and the arbitrator shall honor claims of privilege and privacy recognized at law, and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and costs.
Notwithstanding the foregoing, either you or Posit Science may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state or federal courts located in San Francisco County, California. With the exception of subparts (d) and (e) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Posit Science shall be entitled to arbitrate the Dispute. In the event this agreement to arbitrate is held unenforceable by a court, or in the event AAA refuses to arbitrate the Dispute, the Dispute shall be exclusively brought in the state or federal courts located in San Francisco County, California. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
Governing Law. These Terms and Conditions, and any claim, dispute or controversy of whatever nature arising out of or relating to these Terms and Conditions, shall be governed by and construed solely and exclusively in accordance with the laws of the State of California, USA without giving effect to any law that would result in the application of the law of another jurisdiction.