Brainwell Health helps facilitate convenient access to EEG data recording and results which evaluates brain-based biomarkers; our service then provides access to EEG data, questionnaires, and computerized cognitive assessment results in a convenient and easy-to-understand format. Ultimately, Brainwell strives to deliver insights about your brain function to help inform our Members about their brain health, risk factors, and strategies to reduce brain health risk factors.
These Terms of Service (the “Terms”) contain essential terms and conditions regarding your use of our Services, including your access to and use of www.brainwellhealth.com (“Website”) and any materials, data, information, and content available therethrough. PLEASE REVIEW THE TERMS VERY CAREFULLY BEFORE USING OUR SERVICES. BY ACCESSING OR USING OUR SERVICES, YOU ACKNOWLEDGE THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS OR USE OUR SERVICES. We encourage you to contact us at support@brainwellhealth.com with any questions or concerns before proceeding any further with our Services.
Our Privacy Notice describes how Brainwell collects information about you and how we use and disclose that information. The Terms incorporate Brainwell’s Privacy Policy by reference in its entirety – as though herein completed stated – and all references to these Terms shall refer, without limitation, to our Privacy Policy, as above-linked. Please accordingly review our Privacy Policy very carefully.
PLEASE NOTE THAT THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION THAT WAIVES YOUR RIGHT TO A JURY TRIAL AND REQUIRES USE OF ARBITRATION ON AN INDIVIDUAL BASIS. PLEASE REVIEW SECTION 16 FOR MORE DETAILS.
YOU MAY NOT OBTAIN OUR SERVICES UNLESS YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE. If you are under the age of eighteen (18), Brainwell will not allow you to create an account for Services.
1. Definitions
a. “Brainwell,” “Brainwell Health,” the “Company,” “us,” “our,” and “we,” all refer to SPARK Neuro Inc., a Delaware corporation.
b. “You”, “you,” “your”, and “yourself,” and “User” refers to you, as an individual, plus any entity, individual, and/or organization on whose behalf you are acting in connection with our Services (defined below).
c. “Party” means each of you and Brainwell. Collectively, you and Brainwell are the “Parties.”
d. “Affiliates” refer to any person or entity now or hereafter in control, controlled by or in common control with Brainwell. to Brainwell and any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control, with Brainwell.
e. “Claims” refer to claims, disputes, controversies, matters, causes of action, and any legal demand, collectively. A “Claim” refers to any one of the foregoing.
f. “Losses” refers to liabilities, harms, losses, debts, damages, awards, expenses, fees, costs, penalties and fines, collectively. A “Loss” refers to any one of the foregoing.
g. “Test(s)” refer to tests or scans relating to brain activity, including electroencephalogram (“EEG”) test(s) that measure electrical activity in the brain and computerized cognitive assessments provided by Brainwell for reporting in connection with Brainwell’s Services.
h. “Results” refer to the results of any and all Test analyses; however, Results do not include the formatting of your Results, the graphic representation of your Results, or any other Content accompanying or otherwise furnished in connection with your Results.
i. “Services” refer to any and all services arising out of and/or relating to Brainwell. Our Services include, without limitation: (a) facilitating convenient access to services for the purposes of conducting Test(s), (b) providing convenient access to Results in conjunction with those Test(s) and furnishing a detailed yet comprehensible and consumer-friendly report relating thereto, (c) facilitating opportunities, at Brainwell’s option, to connect with third-party medical professionals regarding ordering of Test(s) and interpretation of related Results, and (d) providing informational content relating to health, wellness, fitness, diet, and lifestyle in connection with such Results. Our Services further include, without limitation, our software applications, text and SMS messages, websites, emails, any social media accounts, and the creation, publication, exhibition, and our Content (defined below). NEITHER BRAINWELL NOR OUR AFFILIATES PROVIDES ANY MEDICAL ADVICE, CARE, OR OPINIONS IN CONNECTION WITH OUR SERVICES, AND YOUR USE OF OUR SERVICES DOES NOT ESTABLISH A DOCTOR-PATIENT RELATIONSHIP WITH BRAINWELL OR OUR AFFILIATES.
j. “Content” refers to our Website and its entire contents, features, and functionality and any and all data, information, content, material, and other intellectual property and proprietary information available through our Services in various formats – including but not limited to as code, data, text, images, multimedia content, designs, graphics, illustrations, photographs, banners, messages, videos, visual interfaces, features, functionalities, software applications and, but specifically excluding PII.
k. “Payment Information” refers to your financially-sensitive information that enables a purchase, such as credit/debit card numbers, CVCs, expiration dates, and PINs.
l. “Payment Method,” refers to a valid, current, accepted means of remitting payment for Services, as permitted by Brainwell – typically by submitting valid, current, accepted Payment Information.
m. “PII” refers to any personally identifiable information that – by itself or in conjunction with other information – identifies, describes, is associated with, or could reasonably be linked to a particular individual or household (e.g. a person’s name, address, phone number, email address, account number), as well as information relating to an individual’s personal or demographic background (e.g. age, occupation, race/ethnicity), health background (e.g. medical history and related data, blood type, current health conditions/symptoms), Sample, and/or Lab Results (to the extent it is not considered “protected health information” or “medical information” that is protected under the Health Insurance Portability and Accountability Act of 1996 or other applicable law, as more specifically described in our Privacy Policy). PII also includes any Payment Information.
2. Brainwell Does Not Provide Any Medical Services.
In order to use of our Services, you acknowledge and agree to the following:
a. BRAINWELL DOES NOT OFFER YOU MEDICAL ADVICE, A DIAGNOSIS, MEDICAL TREATMENT, OR ANY FORM OF A MEDICAL OPINION, THROUGH OUR SERVICES OR OTHERWISE. All material, information, data, and content that Brainwell provides through our Services is strictly for general information purposes.
b. OUR SERVICES ARE NOT A SUBSTITUTE FOR QUALIFIED MEDICAL CARE, QUALIFIED MEDICAL ADVICE, AND/OR A DETAILED DISCUSSION WITH YOUR OWN QUALIFIED HEALTHCARE PROFESSIONAL. It is your responsibility to seek the advice of your own qualified healthcare professional to assist you in making decisions regarding any diagnosis, treatment, course, and/or care – including without limitation in relation to any data and/or information Brainwell provides You covenant that you will not delay in seeking medical care or otherwise ignore the advice or direction of a qualified medical professional based on your use of our Services. If you are concerned that you may be experiencing a medical emergency, please dial 9-1-1 immediately. You understand and agree that accessing Brainwell Content and Services does not create a patient relationship with any medical provider or laboratory. A patient relationship with a medical provider or laboratory is only established when you have actually been treated by a medical provider or laboratory. In addition, you acknowledge and agree that you have selected each medical provider or laboratory and elected to receive services from the medical provider or laboratory and that no third-party, including Brainwell, has referred, suggested or recommended the medical providers or laboratories to you.
c. To the fullest extent permitted by applicable law, you agree that you use our Services and rely on the materials, data, content, and information you receive in connection our Services – including without limitation the our Content – at your own risk. To the fullest extent permitted by applicable law, Brainwell disclaims all liability and responsibility arising out of and/or relating to any reliance placed by you and/or any other person on our Services and/or any data and/or information you receive in connection with our Services, including without limitation as relating to data and information relating to Test(s), Results and/or Content.
3. Please Exercise Caution Regarding Our Services & Your Results.
a. Brainwell sincerely hopes any Results you receive show normal brain activity. Nonetheless, you acknowledge that your Results might not be as hoped or expected, and may even contain distressing and/or life-altering information. While it is not unusual to feel anxious about pending Results, you also acknowledge that you should consult a qualified healthcare professional if such anxiety interferes with your daily life.
b. You acknowledge that the process of reviewing Results is irreversible; once you review your Results, you are committing yourself to an awareness of such Results. You accordingly acknowledge that – before using our Services – it is important to seek the advice of a qualified healthcare professional regarding whether, when, and to what extent you should make use of our Services given your medical history and personal circumstances.
c. Obtaining a test involves the administration of an electroencephalogram (EEG) and completion of computerized cognitive assessments. The test typically causes no discomfort. The risks associated with administration of an EEG include headache and minor scalp irritation from wearing an EEG cap.
d. While Brainwell strives to facilitate access to complete and accurate Results 100% of the time, you acknowledge and accept that: (a) our testing may yield incomplete or even inaccurate Results; and (b) Brainwell does not warrant the accuracy, completeness, usefulness, timeliness, or precision of any Results delivered or accessed through our Services. You further acknowledge and agree that your Results may yield data or information that may have a limited significance presently, but may take on greater meaning as science evolves, knowledge increases, and/or future discoveries are made.
e. You acknowledge that Brainwell recommends your careful discretion in deciding what aspects of your Results to share, how to share them, and with whom. You further acknowledge that, to the extent you disclose your Results, or any other PII, with a healthcare provider, such data and information may become part of your medical records and may thereby be available to insurance companies and/or other healthcare providers, except as limited by applicable law.
4. Only Eligible Individual May Use Our Services.
a. Eligibility. By accessing our Services, you represent that you are of sound mind and body to agree to these Terms and are in possession of the full rights and/or authorization to: (a) consent to our Terms, (b) agree to and pay for any purchase made by you, whether for your own benefit or the benefit of a third party, (c) authorize all rights and licenses herein granted to Brainwell and assume all responsibilities, liabilities, debts, and obligations herein required of you, and (d) submit any PII and other data and information provided in connection with our Services, whether for your own benefit or the benefit of a third party. You must be eighteen (18) years of age to make use of Brainwell’s Services.
b. Non-Eligibility. We reserve the right to terminate your use of and access to, our Services – and cancel any purchase thereunder – for any violation of our Terms or any provision of any other agreement between you and Brainwell or for any other purpose in our sole discretion. Furthermore, you may not use our Services if you are:
i. Currently restricted or prohibited from using our Services;
ii. A past, present, or imminent competitor of Brainwell and/or closely connected to one or more of our past, present, or imminent competitors;
iii. Acting on behalf of another person or entity without that person or entity’s permission;
iv. Under a legal obligation that restricts and/or precludes your use of our Services; and/or
v. Otherwise unwilling to fully agree to and follow all of our Terms.
c. No Guarantees re: Eligibility. While we make every effort to ensure users of our Services meet our eligibility criteria, we make no warranty or representation that every user satisfies our eligibility criteria; there may be ineligible individuals who still gain access to and/or use our Services.
d. Immediate Termination. You agree to close your browser window and cease from all further use of our Services if you are or become ineligible to use these Services.
e. Additional Terms & Conditions. You acknowledge that – in order to purchase and/or use certain Services –Brainwell may require you to enter into one or more separate agreements and/or accept additional terms and conditions, which are hereby incorporated by reference, in their entirety, into these Terms. To the extent that Brainwell requires your consent to further terms and conditions, you will have opportunity to review such terms and conditions before proceeding to purchase and/or use such Services. Insofar as there is any conflict between such terms and conditions and these Terms, the former will take precedence, but only with respect to such conflicting terms and/or conditions.
5. If Eligible, You Are Granted a Limited License to Make Use of Our Services.
a. As long as you remain eligible, you are granted a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, non-delegable, and fully revocable license to access and make use of our Services for personal, non-commercial use in accordance with these Terms. Brainwell reserves the right to suspend, limit, or revoke this license, for any reason, with or without warning or notice, in our sole and absolute discretion.
i. You acknowledge and agree that this license, unto itself, does not grant you permission to use Services requiring payment without first remitting payment. You accept that, in order to receive certain Services, you may be required furnish Payment Information and remit payment, as directed by Brainwell.
ii. You are permitted to download and/or print a reasonable volume of BH Content for your personal, non-commercial use in compliance with the Terms. You are also permitted to download a single copy of any applications that we make available for your download, provided such a download is for your personal, non-commercial use in compliance with the Terms and any additional agreements required for you to download, access, and/or use such an application.
iii. You are permitted to store files that are automatically cached by your web browser. You are also permitted to temporarily store copies of Content in RAM, insofar as such storage is incident to your access and/or use of such Content.
b. You are allowed to create a single account for yourself, as an individual eighteen (18) years of age or older, in order to make use of our Services (an “Account”). You are also allowed to create an Account for each adult who has given you prior express written authorization to agree to these Terms and operate an Account on their behalf. You accept that, in order to create an Account, Brainwell may require you to provide certain PII and a login/password; this includes, without limitation furnishing a first and last name, date of birth, address, email address, race/ethnicity, height/weight, blood type, and information regarding your health history, your present health condition, and any symptoms. You represent and warrant that you have provided and that you will provide truthful, accurate, complete, up-to-date information at all times in connection with our Services; you further covenant that you will update any information that you furnish if, and as soon as, you learn that it is inaccurate, incomplete, and/or outdated; this applies, without limitation, to PII.
c. You acknowledge and accept that Brainwell will attribute all actions and usage of your Account to you. To the fullest extent permitted by applicable law, you are solely responsible for the security of your password, Account information, and any PII thereto connected; you agree to maintain all such information as confidential at all times, and you agree to accept full responsibility for any decision to disclose and/or failure to protect your such information to the fullest extent permitted by applicable law. In this connection, to the fullest extent permitted by applicable law, you agree (i) that you are solely responsible for any actions and omissions relating to your Account and/or its nexus to our Services, including as it relates to the use and/or misuse of PII, and (ii) you shall not hold Brainwell or its Affiliates liable for any compromise of or any unauthorized access to and/or use of your PII, or for otherwise relying on the authority of anyone using your login credentials and/or otherwise accessing your Account. You shall immediately alert us to any breach of your Account. You acknowledge and agree that you shall remain particularly vigilant of your Account security when using a public or shared network and/or computer. If you have an Account, you promise to exit from your Account at the end of each session using our Services.
d. By entering into these Terms, you consent to the use of unsecured email, mobile phone text message, or other electronic methods of communication (“E-messages”) between you and Brainwell for purposes of discussing information relevant to the Services you receive from Brainwell. You hereby acknowledge that E-Messages are typically not a confidential means of communication, and that there is a reasonable chance that a third-party (e.g. people in your home or other environments who can access your phone, computer, or other devices; your employer if using your work email or network; and/or third parties on the Internet, such as, server administrators and others who monitor Internet traffic) may be able to intercept and see E-Messages, including without limitation any attachments thereto and content therein. You have been informed of the risks of transmitting your PII by an unsecured means, including but not limited to the risk with respect to the confidentiality of such information.
e. You may elect to deactivate your account with Brainwell, cease using our Services, delete your account, and/or terminate your agreement to these Terms at any time by sending an email to support@brainwellhealth.com.
i. You acknowledge and agree that your decision to deactivate, cease usage, and/or terminate this Agreement does not automatically entitle you to a credit, rebate, refund, or discount and may result in the removal and/or deletion of your Account, and/or your PII at Brainwell’s sole election and discretion.
ii. Termination of your agreement to these Terms shall not prejudice or affect any right of action or remedy which has accrued or will thereafter accrue to either Party with respect to a breach of any representations, warranties, covenants, and/or other obligations hereunder. Each term and condition within these Terms that, either expressly or by implication and/or nature, is reasonably intended to survive the termination of this Agreement shall so survive – until its purpose is fulfilled or moot, or otherwise indefinitely – regardless of which Party terminates this Agreement; this includes, without limitation terms and conditions pertaining to (a) waiver, (b) assumption of risk, (c) limitation and/or exclusion of liability, (d) indemnification, (e) applicable representations, warranties and covenants, and (f) Brainwell’s rights and licenses with respect to your data and information. Insofar as any of the Terms contain one or more provisions which are not applicable as to this Subsection 5.d, the Parties acknowledge and agree that the inapplicable provision(s) shall simply be severed and that the rest of the provisions shall survive as described in this Subsection 5.d.ii.
iii. As permitted by applicable law, Brainwell may still retain and use your PII after you have deleted your Account. For more information about our practices regarding use of your PII, please review our Privacy Policy.
6. Further User Representations, Warranties, & Covenants.
a. You covenant that you shall not sell, rent, lease, barter, recreate, reproduce, copy, modify, create derivative works from, license, sublicense, distribute, publish, republish, perform, transmit, transfer, display, distribute, exhibit, exploit, and/or make commercial use of our Services, or any aspect thereof (including without limitation the Content), and you acknowledge that you are strictly forbidden from doing any of the foregoing and represent that you have not done any of the foregoing up to this point in time.
b. You covenant that you shall not directly or indirectly resell or export any aspect of our Services – including without limitation our facilitation of access to any third-party laboratory or telemedicine services, any Results, and any personalized materials, and any Content resulting therefrom and/or relating thereto – and you represent that you have not done any of the foregoing up to this point in time.
c. You represent and warrant that you are neither an employer seeking information regarding an employee, nor a person acting on behalf and/or in furtherance of insurance company seeking information about a prospective or actual customer.
d. You represent that you have not violated and covenant that you shall not violate any export control laws or other restrictions on shipping to foreign countries in the course of purchasing and/or making use of Services.
7. Prohibited Uses of Our Services.
You may only use our Services for lawful purposes and in accordance with these Terms. You agree that you shall not use our Services:
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to or from the US or other countries).
- In any way that violates any municipal, administrative or professional rule, standard, guideline, or requirement, including any illegal or deceptive business practice.
- In any way that commits any fraud, misrepresentation, impersonation or identity theft, including the deliberate submission of false, misleading, invalid or inaccurate PII.
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way.
- In any way that violates our rights the rights of our Affiliates, or the rights of any of our licensors, service providers, or any of their respective Affiliates.
- In any way that is a violation, infringement, or misappropriation of third-party rights, including without limitation infringements of third-party intellectual property rights and violations of third-party rights to privacy.
- In any way that attempts to disrupt or interfere with our Services and/or business operations.
c. You covenant that, in the course of using our Services, you shall not introduce and/or circulate malicious content, code, files, or programs, or otherwise engage in malicious conduct. Among other things, you acknowledge and agree that you are not permitted to engage in phishing, harvesting, spamming, or the introduction or circulation of viruses, spyware, worms, Trojan Horses, time bombs, logic bombs, or any other activity that may impact our systems or Services. Furthermore, in connection with our Services, you shall not engage in deceptive business practices or undertake any other form of solicitation that adversely impacts one or more other user’s ability to use and/or enjoy our Services.
d. You shall not make efforts to impair, disrupt, overburden, damage, or interfere with the proper working order of any technologies, systems, or operations, belonging to Brainwell, our Affiliates, our licensors, and/or any of our third-party providers. Under no circumstances shall you make efforts to modify or alter any aspect of our Services or the services of our Affiliates, licensors, and/or third-party providers. This paragraph includes but is not limited to a restriction on manipulation and/or interference with our websites, applications, scheduling systems and services, messaging systems and services, storefront technologies systems, and recordkeeping systems, as well as third-party blood draw services, third-party telemedicine service, and other third-party services arising out of and/or relating to our Services. You shall not attack our Services in any fashion, online or in person, including without limitation by a denial-of-services or distributed denial-of-services attack.
e. Under no circumstances shall you make efforts to decompile, disassemble, reverse engineer, translate, render generically, modify, mimic, duplicate, or otherwise derive any aspect, feature, function, or detail concerning or relating to our Services, except to the extent that such a restriction is expressly forbidden by law; this clause includes, but is not limited to the modification, mimicking, duplication and/or rebranding any Content and/or any technology relating to our Services, as well as the display of Content separate from accompanying text or otherwise out of full context. You are not permitted to use the Content to develop any functions, programs, applications, technologies, or services that leverage the Services.
f. You shall not make efforts to index, copy, extract, download, or otherwise copy or retrieve any of aspect of our Services, including without limitation the Content; this includes, without limitation, a prohibition on use of a spider, data miner, crawler, robot, or similar tool. You are not permitted to link or deep-link to our Site or any of our other Services. You may not utilize framing or mirroring techniques to enclose any item of Content (e.g., logo, name, text, images), and you are forbidden from using “hidden text” that references the Content. You may not and shall not: (i) delete, alter, or remove any copyright designations or notices, trademark designations or notices, or other proprietary designations or notices; or (ii) circumvent any digital rights management systems in connection with our Services; (ii) disable, disarm, bypass, or hack around any of our security systems. Notwithstanding the foregoing, operators of pubic search engines are granted a limited, revocable, non-sublicensable right to use spiders and provide links in connection with the Content strictly to assist in the legitimate development of a public index that reflects content and information appearing in publicly-facing areas of our Website.
g. During the course of using our Services, you shall not sell, rent, lease, barter, recreate or reproduce, copy, create derivative works from, license, sublicense, distribute, publish, perform, transmit, transfer, display, distribute, exhibit, exploit, or otherwise make commercial use of any aspect of our Services, including without limitation any item or aspect of Content.
8. Brainwell Holds and Reserves Numerous Rights.
a. At any time, for any reason, with or without notice, in our sole discretion, Brainwell reserves the right to update, improve, modify, alter, limit, suspend, discontinue, and re-introduce any of our Services – and any aspects, portions, details, features, specifications, and functions thereof – as well as adjust or modify any pricing, availability, and timeframes offered with respect to our Services. Without limitation, this paragraph pertains to all Content, including without limitation all technologies, applications, programs, designs, and offerings connected with and/or supporting our Services,
i. You agree that Brainwell reserves the right to supplement, delete, or otherwise modify some of all these Terms – or any portions thereof – at any time, for any reason, with or without notice, in our sole discretion. In the event that Brainwell revises these Terms, your continued and/or subsequent access and/or use of our Services will constitute your unconditional acceptance of the revised Terms. You acknowledge and accept that you are expected to check-back with the page on our Website containing our Terms, as any changes are binding on you.
ii. You acknowledge and agree that Brainwell may refuse, suspend, terminate, ban, or otherwise restrict access to our Services to any person, including you, at any time, for any reason, with or without notice, in our sole discretion, without liability for any Losses arising therefrom and/or relating thereto. You recognize and accept that Brainwell may restrict access to certain aspects of our Services to persons who create an Account and/or remit payment for certain Services. You agree that your acceptance of these Terms does not, in and of itself, grant you access to those areas of Brainwell’s Services requiring payment for access.
iii. To the extent you enter into a separate agreement and/or consent for Services with Brainwell, and such an agreement or consent contains different termination terms than herein provided, the terms of such separate agreement and/or consent shall control termination as to and only as to the specific Services subject to such an agreement.
b. You acknowledge that, to the extent permitted by applicable law, Brainwell reserves the right to decide how it will contact you regarding any service messages and other publicly-directed communications – among other options, we specifically reserve the right to use email, push notification, text/SMS message, telephone call, and a website banner – and you agree that any reasonable means of contact selected by Brainwell (including any of the aforementioned) shall suffice for timely and adequate notice; this provision, embraces, without limitation, communications concerning changes to one or more of the Terms. You agree that all other notices, requests, consents, Claims, demands, waivers, and other communications that Brainwell sends to you may be sent to the email that you provided to Brainwell when you registered for our Services – or as updated in connection with your Brainwell Health account.
c. To the fullest extent permitted by law, and except as otherwise specified in writing, Brainwell holds no obligation or responsibility to take action or refrain from acting with respect to the continuation, provision, maintenance, updating, improvement, renovation, and/or modification of: (a) our Services; (b) aspects, portions, details, features, specifications, and functions of our Services; (c) terms and /or conditions relating to our Services; and/or (d) material, data, information, and/or content arising out of or relating to our Services, including without limitation the Content.
d. To the fullest extent permitted under law, all Content is owned by us and/or one of our third-party licensors or other providers and are protected by the intellectual property laws of the United States and other countries. You acknowledge and agree that all names, logos, brands trademarks, service marks, slogans, copyright, and designs, and all rights thereto, arising out of, relating to, and/or appearing in connection with the Content belong exclusively to Brainwell and/or one of our third-party licensors or other providers, irrespective of the presence of any legal designation or lack thereof, and are subject to protection from misappropriation, misuse, blurring, tarnishing, dilution, impersonation, or other unauthorized exploitation under United States law and international law; this includes, without limitation, our trademarks, service marks, and/or logos for “Brainwell,” and “Brainwell Health”. You acknowledge and agree that: (i) nothing in these Terms, express or implied, grants you any right or license to make use of any names, logos, trademarks, service marks, slogans, designs, patents, copyright, or other Content arising out of, relating to, and/or appearing in connection with our Services; and (ii) these Terms expressly forbid your use any names, logos, trademarks, service marks, slogans, designs, patents, copyright, or other Content arising out of, relating to, and/or appearing in connection with our Services.
e. To the fullest extent permitted under law, Brainwell reserves any and all rights and interests not expressly granted by these Terms. You acknowledge and agree that: (i) no right, title, or interest in and to the Content transferred to you; and (ii) your provision of a Test(s) or any PII does not afford you any right, title, or interest in and to any research by Brainwell, or any of our Affiliates, licensors, and/or third-party providers or any related Services, Products, documents, data, information, materials, or offerings; you acknowledge and accept that you shall not receive any financial benefits, such as royalties or compensation, by virtue of your provision of the same.
9. It Is Important for You to Understand How Brainwell Uses Your Information.
a. Brainwell’s Privacy Policy can be found here. Once again, we urge you to carefully review our Privacy Policy, as it directly impacts how Brainwell handles your PII, among other types of data and information.
10. In Order to Use Our Services, Brainwell Requires You to Make These Additional Representations and Warranties, and to Assume These Additional Obligations.
a. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME ALL RISK, LIABILITY, AND RESPONSIBILITY FOR DETERMINING THE EXTENT TO WHICH OUR SERVICES AND ANY THIRD-PARTY OFFERINGS AVAILABLE THROUGH OUR SERVICES ARE APPROPRIATE, VIABLE, AND SAFE FOR YOUR USE AND SUITABLE FOR YOUR PARTICULAR NEEDS AND SUFFICIENT FOR YOUR EXPECTATIONS. CERTAIN SERVICES MAY NOT BE APPROPRIATE, VIABLE, SUITABLE, AND/OR SAFE FOR CERTAIN INDIVIDUALS. YOU AGREE THAT, BETWEEN YOU ON THE ONE HAND AND BRAINWELL AND OUR AFFILIATES ON THE OTHER HAND, YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR DETERMINING: WHETHER TO MAKE USE OF ANY PRODUCT OR SERVICE; WHETHER AND TO WHAT EXTENT TO SEEK MEDICAL CARE OR OTHER HEALTHCARE SERVICES IN CONNECTION WITH OUR SERVICES AND/OR YOUR RESULTS – AND IF SO, FROM WHOM, AT WHAT COST, FOR WHAT PURPOSES, AND TO WHAT EXTENT; AND WHETHER AND TO WHAT EXTENT TO FOLLOW A GIVEN OPINION, RECOMMENDATION, COURSE, TREATMENT, PLAN OR ITEM OF ADVICE. YOU AGREE THAT YOU SHALL RELEASE BRAINWELL AND OUR AFFILIATES AND HOLD HARMLESS BRAINWELL AND OUR AFFILIATES IN CONNECTION WITH ANY DECISION BY YOU CONCERNING: THE SELECTION, PURCHASE, AND/OR USAGE OF A PRODUCT, SERVICE, OR OTHER OFFERING; WHETHER AND TO WHAT EXTENT TO PURSUE MEDICAL CARE OR HEALTHCARE SERVICES; AND WHETHER AND TO WHAT EXTENT TO FOLLOW A GIVEN OPINION, RECOMMENDATION, COURSE, TREATMENT, PLAN OR ITEM OF ADVICE. You further acknowledge that if a medical provider is not your primary care provider, it is your sole responsibility to follow through with your primary care provider on any medical conditions or treatments suggested in your treatment by any medical provider, and to obtain a medical examination by your primary care provider related to the findings, or lack of findings, in your treatment with a medical provider.
b. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT LEGALLY ALLOWED, YOU ASSUME ALL RISK, LIABILITY, AND RESPONSIBILITY FOR YOUR OWN ACTS AND OMISSIONS IN CONNECTION WITH OUR SERVICES; THIS INCLUDES, WITHOUT LIMITATION, YOUR ACTS AND OMISSIONS IN CONNECTION WITH: (i) YOUR SCHEDULING AND RECEIPT OF TEST(S); (ii) YOUR RECEIPT OF ANY RESULTS (iii) ANY THIRD-PARTY MEDICAL ADVICE AND/OR CARE; AND (iv) THE PURCHASE AND/OR USE OF ANY MEDICAL PRODUCT OR DEVICES. YOU ACCORDINGLY AGREE TO CAREFULLY READ AND FOLLOW ALL INSTRUCTIONS DIRECTED TO YOU BY BRAINWELL, OUR AFFILIATES, AND ANY OF OUR THIRD-PARTY PARTNERS AND PROVIDERS IN CONNECTION WITH OUR SERVICES AND ANY SERVICES THERETHROUGH AVAILABLE. YOU FURTHER AGREE TO ASSUME THE COST OF ALL REPAIRS ARISING OUT OF AND/OR RELATING TO YOUR USE OF OUR SERVICES AND ANY RELATED THIRD-PARTY PRODUCTS AND SERVICES.
c. You represent that you have carefully assessed whether our Services and any third-party Offerings facilitated through our Services are appropriate, viable, and safe for your use, given your particular needs and sufficient for your expectations – and you promise that you will continue to do so to the extent you make use of additional Services and/or related third-party offerings. Furthermore, you represent and warrant that you are mentally and physically capable of using and healthy and sound enough to use our Services – and any third-party Offerings available in conjunction with our Services – to the extent used by you. If you have or develop a condition and/or disability that could impact your use of our Services and/or related third-party offerings, you represent and warrant that a licensed medical professional has approved your use our Services and any related third-party offerings to the extent used by you.
11. Please Review These Terms Governing Your Purchase of Services.
a. You Authorize Brainwell to Effectuate Your Purchase. You should plan for your payment to process immediately upon finalizing your purchase with Brainwell. Effective immediately, you hereby authorize Brainwell to: (i) charge your Payment Method in full for all amounts listed at the time of purchase/transaction confirmation, inclusive of any taxes, charges, surcharges, and fees; (ii) disclose your PII, inclusive of your Payment Information, to our Affiliates, as well as our payment providers, and any laboratory companies, and other service providers, as reasonably necessary to facilitate the purchase and/or delivery of our Services and any related third-party Offerings; (iii) make use of any other Payment Methods you have submitted in the event that one of your Payment Methods is refused or denied; (iv) renew your service on your renewal date, effective 12 months after your initial purchase, unless you cancel. You represent and warrant that, to the extent you submit Payment Information during the course of using our Services: (i) the entity, organization, or institution connected to such a transaction will honor the charges you have incurred; (ii) you shall be bear full responsibility for all amounts denied, refused, or uncollected by said entity, organization, or institution. You agree that Brainwell may limit, suspend, or revoke your access if you fail to submit and keep up-to-date a viable Payment Method.
b. Cancellation & Refund Policy. You may cancel your membership at any time by emailing us at support@brainwellhealth.com at least 24 hours ahead of your Service renewal date. If you cancel the Services, you will continue to have access to your Account and the Services[1] through the end of your then current billing period. Your Account will automatically close at the end of such billing period[2] . In accordance with Section 5(e)(i), you acknowledge that cancellation of the Services does not automatically entitle you to a credit, rebate, refund, or discount[3] [4] . Brainwell intends to be fair and reasonable in determining whether to issue any such return of payment. Please allow Brainwell up to sixty (60) days to review your request and make such a determination.
c. Changes to the Costs of our Services. We may change the cost for our Services from time to time; however, any price changes will become effective no earlier than 30 days following notice to you. If you do not wish to accept the price change, you can cancel the Services before the change takes effect.
12. You Agree to Indemnify Brainwell, Limit Our Liability, and Refrain from Injunctive Measures.
a. IN NO EVENT SHALL BRAINWELL OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, EVEN IF BRAINWELL OR ITS AFFILIATES HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE CONTENT, INFORMATION, SERVICES, PRODUCTS, AND MATERIALS. YOU ACKNOWLEDGE AND AGREE THAT, IF YOU ARE NOT FULLY SATISFIED WITH OUR SERVICES OR ANY PORTION THEREOF, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF OUR SERVICES.
IF THE FOREGOING LIMITATION OF LIABILITY IS HELD TO BE UNENFORCEABLE, IN NO EVENT SHALL BRAINWELL’S OR OUR AFFILIATES’ AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY YOU FOR THE RECEIPT OF THE SUBJECT SERVICES IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY MATTERS ARISING OUT OF OR RELATING TO THE INTENTIONAL MISCONDUCT OF BRAINWELL. Some jurisdictions do not allow the limitation or exclusion of liability for certain damages, so the above limitations and exclusions may not apply to you to the extent such jurisdiction’s law is applicable to these Terms. If the law applies to you and your use of the Content, information, Services, Products or materials does not permit the waiver by you of any rights or remedies, these Terms do not require you to waive such rights.
b. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY AGREE TO WAIVE ALL CLAIMS TO ANY EQUITABLE REMEDY, INCLUDING, BUT NOT LIMITED TO, INJUNCTIVE RELIEF AGAINST BRAINWELL OR ANY OF BRAINWELL’S SERVICES.
c. You specifically waive any applicable protections of California Civil Code Section 1542, which states: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” You acknowledge that you may later discovery Claims or facts in addition to or different from those which you now know or believe to exist with regards to the subject matter of these Terms (including matters arising out of or relating to Brainwell, our affiliates, our Services, your PII, our Content or any other agreement between you and Brainwell), and which if known or suspected at the time these Terms became effective, may have materially affected its terms. Nevertheless, you waive any and all Claims that might arise as a result of such different or additional Claims or facts. IF YOU ARE A RESIDENT OF A STATE AND/OR JURISDICTION WITH LEGAL PROVISIONS OR PROTECTIONS SIMILAR TO CALIFORNIA CIVIL CODE § 1542, YOU HEREBY WAIVE ALL SUCH PROVISIONS AND PROTECTIONS WITH RESPECT TO ANY ALL MATTERS ARISING OUT OF, RELATING TO, AND/OR CONCERNING BRAINWELL, OUR AFFILIATES, OUR SERVICES, YOUR PII, THESE TERMS, AND/OR ANY OTHER AGREEMENT BETWEEN YOU AND BRAINWELL.
d. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY AGREE TO INDEMNIFY, DEFEND, AND HOLD BRAINWELL, OUR AFFILIATES, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS, AND ASSIGNS HARMLESS FROM AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, JUDGMENTS, AWARDS, LOSSES, COSTS, EXPENSES, OR FEES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF AND/OR RELATING TO: (i) YOUR USE OR MISUSE OF OUR SERVICES OR ANY THIRD-PARTY SERVICES OTHER OFFERINGS ARISING OUT OF OR RELATING TO OUR SERVICES (INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY); (ii) ANY ACTS OR OMISSIONS TAKEN AS A RESULT OF YOUR RECEIPT OF RESULTS OR CONTENT; (iii) ANY THIRD-PARTY OPINION, RECOMMENDATION, COURSE OF TREATMENT, PLAN, OR ITEM OF ADVICE THAT CONCERNS, ARISES OUT, RELATES TO, INCORPORATES, EMANATES FROM, OR BEARS ON OF THE USE OF OUR SERVICES; (iv) ANY USAGE, DISCLOSURE, DECISION, ACT, OR OMISSION ARISING OUT OF, RELATING TO, OR RESULTING FROM RESULTS OR CONTENT; (v) ANY INFORMATION OR DATA YOU PROVIDE TO US OR ONE OR MORE OF OUR AFFILIATES, LICENSORS, AND THIRD-PARTY SERVICES PROVIDER, INCLUDING WITHOUT LIMITATION ANY SELF-REPORTED PII; (vi) YOUR FAILURE TO MAINTAIN THE CONFIDENTIALITY OR SECURITY OF YOUR PASSWORD, ACCOUNT INFORMATION, OR PII; (viii) YOUR VIOLATION OF ANY THIRD-PARTY RIGHTS (E.G. PRIVACY, CONFIDENTIALITY, INTELLECTUAL PROPERTY); AND (viii) YOUR VIOLATION OF ONE OR MORE TERMS, INCLUDING WITHOUT LIMITATION ANY BREACH OF REPRESENTATION, WARRANTY, OR COVENANT SPECIFIED IN THIS THESE TERMS. THIS PARAGRAPH APPLIES TO ALL MANNERS OF CLAIMS, WITHOUT EXCEPTION. YOU ACKNOWLEDGE AND AGREE THAT BRAINWELL AND ITS AFFILIATES RESERVE THE EXCLUSIVE RIGHT TO CONTROL THE DEFENSE, SETTLEMENT, AND SELECTION OF COUNSEL IN CONNECTION WITH ANY CLAIM FOR WHICH YOU ARE BOUND TO PROVIDE INDEMNIFICATION BY THE TERMS AND CONDITIONS SET FORTH IN THIS PARAGRAPH OR ANY OTHER TERM OR CONDITION, AT YOUR COST AND EXPENSE. BRAINWELL WILL MAKE A GOOD-FAITH EFFORT TO NOTIFY IF WE LEARN OF ANY CIRCUMSTANCES THAT GIVE RISE TO THE INDEMNIFICATION OBLIGATIONS HEREIN SPECIFIED.
e. NEITHER BRAINWELL NOR OUR AFFILIATES MAKES A WARRANTY OR REPRESENTATION REGARDING ANY INSURANCE OR OTHER HEALTHCARE POLICY, ANY BENEFITS THEREUNDER, OR THE SCOPE, VALIDITY OR ACCEPTABILITY THEREOF. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT HOLD BRAINWELL OR OUR AFFILIATES RESPONSIBLE OR LIABLE FOR ANY INSURANCE OR OTHER HEALTHCARE POLICY CLAIMS, COVERAGE, REIMBURSEMENT, OR ACCEPTANCE ISSUES; TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO RELEASE BRAINWELL AND OUR AFFILIATES AND HOLD BRAINWELL AND OUR AFFILIATES HARMLESS FROM ANY MATTER ARISING OUT OF AND/OR RELATING TO ANY INSURANCE OR OTHER HEALTHCARE POLICY CLAIMS, COVERAGE, REIMBURSEMENT, OR ACCEPTANCE ISSUES.
13. In Order to Use Our Services, You Accept the Following Waivers and Disclaimers.
CERTAIN JURISDICTIONS MAY LIMIT OR FORBID CERTAIN OF THE EXCLUSIONS, LIMITATIONS, WAIVERS AND/OR DISCLAIMERS APPEARING THROUGHOUT THIS AGREEMENT, INCLUDING WITHOUT LIMITATION AS LISTED IN THIS SECTION 14. ACCORDINGLY, IT IS POSSIBLE THAT THE FOLLOWING MAY NOT APPLY TO YOU IN ITS ENTIRETY. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, YOU HEREBY AGREE TO THE ALL OF THE FOLLOWING DISCLAIMERS AND WAIVERS, IN THEIR ENTIRETY:
a. NEITHER BRAINWELL NOR OUR AFFILIATES PROVIDES ANY WARRANTIES WITH RESPECT TO ANY SERVICES OR CONTENT, OR ANY ASPECT THEREOF THAT IS NOT EXPRESSLY STATED IN THESE TERMS. ALL SERVICES AND CONTENT AND ASPECTS AND FEATURES THEREOF ARE PROVIDED “AS IS,” “WITH ALL FAULTS”, AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (E.G. WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OPERABILITY, CONDITION, ACCURACY, AND VALUE). THIS PARAGRAPH APPLIES REGARDLESS OF WHETHER THE WARRANTY IN QUESTION IS EXPRESS OR IMPLIED, OR WHETHER THE WARRANTY ARISES IN THE COURSE OF PERFORMANCE, USAGE OF TRADE, DEALING, OR OTHERWISE. THIS PARAGRAPH APPLIES, WITHOUT LIMITATION, TO OUR ESULTS, CONTENT, PERSONALIZED OFFERINGS, THIRD-PARTY OFFERINGS, AND ALL MATERIAL, DATA, INFORMATION, AND CONTENT RELATING THERETO.
b. WITH RESPECT TO ANY “FORWARD-LOOKING STATEMENTS,” BRAINWELL DISCLAIMS ALL DUTIES, DEBTS, OBLIGATIONS, AND LIABILITIES.
c. THOUGH CERTAIN ASPECTS OF THE CONTENT, RESULTS, AND OTHER THIRD-PARTY MATERIALS AND SERVICES FACILITATED THROUGH BRAINWELL MAY BE PROVIDED BY HEALTHCARE PROFESSIONALS, NEITHER BRAINWELL NOR OUR AFFILIATES OFFERS YOU MEDICAL ADVICE, OPINION, GUIDANCE, DIAGNOSIS, TREATMENT, OR CARE, OR ANY OTHER MEDICAL SERVICES, IN THE COURSE OF PROVIDING SERVICES OR OTHERWISE. BRAINWELL DOES NOT INTERFERE WITH THE PRACTICE OF MEDICINE BY MEDICAL PROVIDERS OR THE PROVISION OF LABORATORY SERVICES BY LABORATORIES, EACH OF WHOM IS SOLELY RESPONSIBLE FOR THE MEDICAL CARE, LABORATORY SERVICES AND TREATMENT PROVIDED TO YOU.
d. NEITHER BRAINWELL NOR OUR AFFILIATES MAKES ANY WARRANTY OR REPRESENTATION REGARDING THE AVAILABILITY, QUALITY, EFFICACY, ACCURACY, RELIABILITY, UP-TO-DATENESS, USEFULNESS, TIMELINESS, SAFETY, OR RESULTS OF ANY OF OUR SERVICES – EITHER GENERALLY, OR WITH RESPECT TO ANY PERSON’S OR ENTITY’S SPECIFIC, INDIVIDUAL NEEDS. THIS PARAGRAPH EMBRACES, WITHOUT LIMITATION, A LACK OF WARRANTY AND REPRESENTATION REGARDING ANY RESULTS AND ANY CONTENT. YOU AGREE THAT NEITHER BRAINWELL NOR ITS AFFILIATES SHALL BE LIABLE FOR ANY LOSSES ARISING OUT OF AND/OR RELATING TO YOUR RELIANCE ON ANY RESULTS, CONTENT OR ANY OTHER DATA OR INFORMATION ARISING OUT OF OR RELATING TO OUR SERVICES THAT CONTAINS AN OMISSION, MISTAKE, ERROR. YOU AGREE THAT NEITHER BRAINWELL NOR ITS AFFILIATES SHALL BE LIABLE FOR ANY LOSSES ARISING OUT OF OR RELATING TO YOUR INABILITY TO ACCESS DATA OR INFORMATION OBTAINED IN CONNECTION WITH OUR SERVICES OR ANY OF OUR THIRD-PARTY PROVIDERS’ SERVICES – INCLUDING WITHOUT LIMITATION AS RESULT OF DELETION, FAILURE IN TRANSMISSION, INTERRUPTION, DELAY, DEFECT, UNAUTHORIZED ACCESS, THEFT, VIRUS, OPERATIONAL FAILURE, COMMUNICATIONS FAILURE, DESTRUCTION, OR AN ACT OF GOD.
e. NEITHER BRAINWELL NOR OUR AFFILIATES WARRANTS OR REPRESENTS THAT THE CONTENT OR ANY RESULTS WILL BE COMPLETE, ACCURATE, USEFUL, PRECISE, UP-TO-DATE, AVAILABLE, RELIABLE, OR OF A CERTAIN STANDARD OR QUALITY. YOU ACKNOWLEDGE THAT, WITH RESPECT TO OUR SERVICES, YOUR ACCESSIBILITY, VISIBILITY, AND SPEED OF USE MAY BE IMPACTED BY SUCH FACTORS AS LOCATION, CONNECTION, DEVICE TYPE, BANDWIDTH, AND CONCURRENT TRAFFIC. YOU AGREE THAT BRAINWELL SHALL NOT BE LIABLE FOR THE UNAVAILABILITY OF OUR SERVICES OR ANY ASPECT THEREOF.
f. BRAINWELL USES CERTAIN SAFEGUARDS TO REASONABLY PROTECT THE SECURITY AND INTEGRITY OF YOUR PII. NONETHELESS, YOU ACKNOWLEDGE AND ACCEPT THAT BRAINWELL CANNOT GUARANTEE OR PROMISE THAT (i) SUCH INFORMATION OR ANY OTHER INFORMATION, DATA, CONTENT, MATERIAL, OR TECHNOLOGY, WILL BE 100% SAFE FROM UNAUTHORIZED ACCESS AND/OR USE; (ii) OUR TECHNOLOGIES, CONTENT, AND MATERIALS WILL REMAIN FREE OF HARMFUL OR DESTRUCTIVE COMPONENTS LIKE MALWARE, TROJAN HORSES, WORMS, AND VIRUSES; (iii) OUR SERVICES WILL NOT BE IMPACTED BY A DISTRIBUTED DENIAL OF SERVICE ATTACK; OR (iv) OUR COLLECTION, RECEIPT, STORAGE, AND TRANSMISSION OF SUCH INFORMATION OR ANY OTHER INFORMATION, DATA, CONTENT, MATERIAL, OR TECHNOLOGY WILL REMAIN UNINTERRUPTED OR COMPLETELY SECURE. BRAINWELL AND OUR AFFIIATES ACCORDINGLY DISCLAIM ALL LIABILITY ARISING OUT OF OR RELATING TO THE SECURITY, INTEGRITY, OR UNAUTHORZED ACCESS OR USE OF YOUR DATA, YOUR USE OF OUR WEBSITE OR ANY SERVICES OBTAINED THROUGH THE WEBSITE, AND INFORMATION (INCLUDING WITHOUT LIMITATION YOUR PII); THE TERMS IN THIS PARAGRAPH EMBRACE, WITHOUT LIMITATION ANY LOSSES, ARISING OUT OF AND/OR RELATING TO ANY VIRUS, MALWARE, DISTRIBUTED DENIAL OF SERVICE ATTACK OR OTHER HARMFUL CODE OR MATERIALS THAT MAY IMPACT YOUR DATA, INFORMATION, DEVICE, COMPUTER, PII, OR OTHER PROPERTY (INTELLECTUAL OR OTHERWISE) AND ARISE OUT OF OR RELATE TO YOUR USE OF OUR SERVICES, AS WELL AS ANY UNAUTHORIZED GRANT OF ACCESS TO YOUR ACCOUNT OR INFORMATION ON THE BASIS OF FALSE PRETENSES, STOLEN OR MISAPPROPRIATED LOGIN/PASSWORD INFORMATION, SOCIAL ENGINEERING, OR OTHERWISE. YOU ACKNOWLEDGE AND AGREE THAT YOUR TRANSMISSION OF DATA AND INFORMATION IN CONNECTION WITH OUR SERVICES IS AT YOUR OWN RISK.
14. Choice of Law and Jurisdiction
a. Governing Law and Jurisdiction. All matters relating to these Terms (including our Services and Content), and any dispute or Claim arising therefrom or related thereto (in each case, including non-contractual Claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).
Any legal suit, action, or proceeding arising out of, or related to, these Terms (including our Services and Content), shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, in each case located in the City of New York and County of New York, although Brainwell retains the right to bring any suit, action or proceeding against you for breach of these Terms in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
b. U.S. Jurisdiction; Foreign Access. Brainwell and its properties are located in and operated from the United States. Our Services are intended only for use by persons located in the United States. Brainwell does not intend to be subject to any non-U.S. law or jurisdiction, under any circumstances, and you agree that you shall not pursue any Claims against Brainwell insofar as they are subject Brainwell to non-U.S. law or jurisdiction. Moreover, you acknowledge and agree that Brainwell makes no representation or warranty that our Services – including without limitation our Website, the Content and any Results relating to our Services – are accessible, legally permitted, or appropriate for consumption in any countries or jurisdictions outside of the United States. It may not be legal for you or other persons to access our Website based on the country or jurisdiction in which you or such persons are located; you accordingly assume all risk, liability, and responsibility in connection with accessing this site outside of the United States and complying with any laws, rules, regulations, or guidelines applicable thereto. Furthermore, insofar as you are resident of a country other than the United States or located in such a country when accessing our Services (e.g., in a country belonging to the European Union), you acknowledge that you are engaging in the transfer of data and information to the United States, which may have less protective data laws, privacy regulations, and disclosure regulations than your country of residency and/or location.
15. Binding Arbitration of Disputes on an Individual Basis.
a. Claims subject to arbitration. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND BRAINWELL ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED BY ARBITRATION.
ANY CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND BRAINWELL ARISING FROM OR RELATING IN ANY WAY TO OUR SERVICES CONTENT OR THESE TERMS, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
b. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 16. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
c. Claims not subject to arbitration. Notwithstanding the foregoing, you or Brainwell may bring an action in your local small claims court seeking only individualized relief, so long as the action remains in that court and is not removed or appealed to a court of general jurisdiction. If your jurisdiction permits small claims court judgments to be removed or appealed to a court of general jurisdiction for a trial de novo, that appeal shall be resolved in arbitration in accordance with this arbitration provision. This arbitration provision does not preclude you or Brainwell from bringing issues to the attention of federal, state, or local agencies or law enforcement.
d. Class Action Waiver. The arbitrator may award relief (including, but not limited to, damages, restitution, declaratory relief, and injunctive relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual Claim. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LE LAW, YOU AND BRAINWELL EACH AGREE TO BRING CLAIMS AGAINST THE OTHER IN AN INDIVIDUAL CAPACITY. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LE LAW, YOU AND BRAINWELL EACH AGREE NOT TO PURSUE OR RECOVER ANY DAMAGES OR OTHER RELIEF IN CONNECTION WITH ANY CLAIMS AGAINST THE OTHER IN A CLASS ACTION, COLLECTIVE ACTION, MASS ACTION, PRIVATE ATTORNEY GENERAL PROCEEDING, OR OTHER AGGREGATED PROCEEDING. Further, unless both you and Brainwell agree otherwise, the arbitrator may not consolidate more than one person’s Claims. To the fullest extent permitted by applicable law, the arbitrator may not preside over any form of a collective action, class action, mass action, private attorney general action, or other aggregated proceeding. If, after exhaustion of all appeals, any of the aforementioned prohibitions on non-individualized relief is found to be unenforceable with respect to a particular Claim then the parties agree that such a Claim or request for relief shall be decided by a court of competent jurisdiction after all other claims and requests for relief shall be arbitrated.
g. Time Limitation on Claims. To the fullest extent permitted by applicable law, you and Brainwell agree that any Claim arising out of or relating to Brainwell, our Affiliates, these Terms, our Services, Content, a transaction in connection with one or more or Services, PII, or one or more of third-party products or services arising out of or relating to our Services shall be permanently barred if it is not filed or submitted for arbitration within one year of when the alleging party knew or reasonably should have known of the issue or matter giving rise thereto. Notwithstanding the foregoing, this paragraph shall not apply to the filing or submission of any counterclaim.
16. Miscellaneous
a. Except as expressly permitted otherwise in writing by Brainwell, you may not assign, delegate, sell, or transfer any of your rights or obligations under these Terms. Any purported assignment or delegation in violation of this Section 17.a is null and void. No assignment or delegation relieves you of any of your obligations under these Terms. Notwithstanding anything herein contrary, Brainwell may freely assign, delegate, sell, or transfer our rights and obligations under these Terms– and any assets relating to, arising out of, and/or concerning these Terms – including without limitation circumstances of sale, merger, acquisition, reincorporation, consolidation, reorganization, or other change of control. These Terms will be binding on the Parties’ heirs, permitted assigns, administrators, and other legal represents, and shall inure to the benefit of the Parties and any of its successors and/or assigns.
b. You acknowledge and agree that Brainwell shall not hold any liability or responsibility for any Losses – or be deemed to have defaulted or breached these Terms – for any failure or delay in fulfilling or performing any term of these Terms that results from factors beyond the scope of our reasonable control. This includes without limitation, acts of God, weather, the slowdown or shutdown of carriers, transportation, and/or utilities, strikes and protests, border delays, health crises and/or pandemic illnesses, closures and/or lockdowns, acts of warfare and/or terrorism, and actions taken by government agencies.
c. If any of the Terms herein – or any portion(s) of any terms or conditions – are held unenforceable, the impact of that unenforceability (i.e. limitation or exclusion of terms) will be construed as narrowly as possible to the extent permitted by applicable law and it does not invalidate or render unenforceable such term or provision in any other jurisdiction; moreover, the remainder of these Terms– and all other portions thereof – shall nevertheless remain in full force and effect to the extent legally permissible.
e. No waiver under these Terms is effective unless it is in writing, identified as a waiver to these Terms, and signed by an authorized representative of the Party waiving its right(s). The Parties agree that any failure by either Party to require the other’s strict adherence to any term or condition herein shall, in no manner, be construed as a waiver of any right(s) by that Party, nor shall such a failure be construed to remove or dilute the effect of any term, condition, or requirement stated in these Terms. These Terms may not be amended or modified unless specified in writing and bearing the consent of both Parties.
f. Insofar as these Terms include any errors or ambiguities related to spelling, grammar, or syntax, or any other clear errors or ambiguities, these errors and ambiguities shall be construed to reflect the intent of the Parties. This includes, without limitation: (a) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “and” vs. “or” vs. “and/or”; and (b) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “including,” which shall mean “including without limitation,” rather than as point of exclusion, unless otherwise noted; (c) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “Service” vs. “Services” vs. “Service(s),” which shall not render any language inapplicable by virtue of the fact that it does or does not refer to more than one (1) Service. The Parties agree that the Terms shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or burdening any of the Parties by virtue of the authorship of any term or condition herein appearing; the language used herein will be deemed to be the language chosen by the Parties hereto to express their mutual intent, and no rule of strict construction will be applied against any Party.
g. All notices, requests, consents, claims, demands, waivers, and other communications from you to Brainwell in connection with these Terms (each, a “Notice”) shall be in writing and addressed to Brainwell at the address on this website. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid).
h. These Terms benefit solely the Parties and their permitted assigns and nothing in these Terms, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.