Brainetics Terms and Conditions of Use
PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS OF USE (collectively with any amendments hereto, "TERMS AND CONDITIONS"). BY USING THIS WEBSITE YOU AGREE TO BE BOUND AND ABIDE BY THESE TERMS AND CONDITIONS AND ANY AMENDMENTS THERETO, AND AGREE THAT YOU ARE AT LEAST 13 YEARS OF AGE AND ELIGIBLE TO USE THIS SITE AND PLACE AN ORDER FOR BRAINETICS’S PRODUCTS AND SERVICES.
IF YOU ARE 13 TO 17 YEARS OF AGE, YOU MUST USE THIS SITE AND/OR PURCHASE AND USE BRAINETICS’S PRODUCTS OR SERVICES ONLY WITH THE INVOLVEMENT OF YOUR PARENT OR GUARDIAN.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS, PLEASE DO NOT USE THE SITE OR ORDER OR USE BRAINETICS’S PRODUCTS OR SERVICES.
We may update or amend these Terms and Conditions from time to time to comply with law or to meet our changing business requirements without notice to you. Any updates or amendments will be posted on the Sites. The Terms and Conditions displayed on the Sites at the time the order is accepted will apply to the order.
Welcome to the Web site(s) of BRAINETICS’S (including www.braineticspower.com). These Terms and Conditions govern and apply to your ("you" or "your") access to and use of the Sites and their related domains on which these Terms and Conditions appear, any order you place through any of the Sites, an—as applicable—your use of other products or services of Brainetics. You must read these Terms and Conditions carefully before placing an order or using the Sites. By using the Sites, and/or placing an order through the Sites, you confirm that you have read, understood, and agree to these Terms and Conditions in their entirety. If you do not agree to these Terms and Conditions in their entirety, you must not order any product or service through or otherwise use the Sites. The Terms and Conditions may be changed in the future without further notice. Your continued use of the Sites and/or other products or services of Brainetics after any such changes constitutes your acceptance of the new Terms and Conditions. These Terms and Conditions apply to your access to and use of the Sites, any order you place through any of the Sites, and to all products and services we supply, produce, distribute, or market. To the extent of any express inconsistency with any other agreement you may have with Brainetics for products, services, or otherwise, that other agreement shall prevail unless otherwise explicitly stated therein. If these Terms and Conditions refer or relate to a clause that is not part of that other agreement, then these terms shall apply therein as well, if you are a user of the Sites. If you register for our digital site, braineticspower.com, additional rules, policies, and disclaimers may apply.
You must only use the Sites for lawful purposes, and you must not use them in a way that infringes the rights of anyone else or that restricts or inhibits anyone else's enjoyment of the Sites. You may not without our prior written consent:
copy, reproduce, use, or otherwise deal with any content on the Sites;
- modify, distribute, or repost any content on the Sites for any purpose; or
use the content of the Sites for any commercial exploitation whatsoever.
- In using the Sites, you further agree:
- not to disrupt or interfere with the security of, or otherwise abuse, the Sites, or any services, system resources, accounts, servers, or networks connected to or accessible through the Sites or affiliated or linked sites;
- not to disrupt or interfere with any other user's enjoyment of the Sites or affiliated or linked Web sites;
- not to upload, post, or otherwise transmit through or on the Sites any viruses or other harmful, disruptive, or destructive files;
- not to use, frame, or utilize framing techniques to enclose any Brainetics trademark, logo, or other proprietary information (including the images found at the Sites, the content of any text, or the layout/design of any page or form contained on a page) without Brainetics express written consent;
- not to use meta tags or any other "hidden text" utilizing a Brainetics name, trademark, or product name without Brainetics/s express written consent;
- not to deeplink to this Sites without Brainetics’s express written consent;
- not to create or use a false identity on the Sites, share your account information, or allow any person besides yourself to use your account to access the Sites;
- not to collect or store personal data about others;
- not to attempt to obtain unauthorized access to the Sites or portions of the Sites that are restricted from general access;
- not to post any material that is knowingly false and/or defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person's privacy, or otherwise violative of any law.
You also agree not to post any copyrighted material unless the copyright is owned by you or by Brainetics; and
to be bound by the Product Submission Policies of Brainetics, including that any product submission you may make to Brainetics will not be held in confidence by Brainetics, and is not proprietary, that Brainetics may use the product submission and any aspect thereof for any purposes in Brainetics’s sole discretion, and that Brainetics owes no duties or obligations with respect to you or the product submission made.
In addition, you agree that you will comply with all applicable local, national, and international laws and regulations that relate to your use of or activities on the Sites. We will not be responsible, or liable to any third party, for the content or accuracy of any materials posted by you or any other user of the Sites. We have the right to remove any material or posting you make on the Sites if, in our opinion, such material does not comply with the content standards set out in these Terms and Conditions.
Content Uploaded to the Sites
In the event that you upload any photographs, comments, video clips, or other media to the Sites (the "Uploaded Content"), Brainetics has the exclusive right to use any and all such elements of the Uploaded Content in connection with and/or as part of its business, including in connection with and/or in any advertising in any and all media, including, without limitation, product packaging, printed publications, presentations, promotional materials, events and associated marketing materials, television and cinema commercials, videos, or Web sites, in perpetuity throughout the world as Brainetics in its sole discretion sees fit without further consent or payment. Brainetics has all right, title, and interest in any and all results and proceeds from such use of the Uploaded Content. Brainetics has the right to transfer the aforementioned rights to use the Uploaded Content to any third party, including, but not limited to, any of its subsidiaries or affiliated companies. Brainetics may alter, adapt, or edit the Uploaded Content and any further material created under these Terms and Conditions, and market and exploit it entirely at Brainetics’s sole discretion. Brainetics is not obliged to make any use of the Uploaded Content or exercise any of the rights granted by these Terms and Conditions.
Users of the Sites must only post Uploaded Content that is owned by, and features, themselves, and no other third parties.
Changes to the Sites
Brainetics may, in its sole discretion, terminate, change, modify, suspend, make improvements to, or discontinue any aspect of the Sites or any products available through or outside of the Sites, temporarily or permanently, including the availability of any features of the Sites or access to any parts of the Sites, at any time without notice to you, and you agree that Brainetics shall not be liable therefor.
Brainetics makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature, or reliability of sites accessible by hyperlink from the Sites, or sites linking to these Sites. The linked sites are not under the control of Brainetics, and Brainetics is not responsible for the content of any linked site or any link contained in a linked site, or any review, changes, or updates to such sites. The inclusion of any link does not imply affiliation, endorsement, or adoption by Brainetics of the site or any information contained therein. When leaving the Sites, you should be aware that Brainetics’s Terms and Conditions and policies no longer govern, and therefore you should review the applicable terms and policies, including privacy and data-gathering practices, of that site.
Copyright and Trademarks
All the Sites’ materials, including, without limitation, all Brainetics product logos, design, text, graphics, software, other files, and the selection and arrangement thereof (the "Content") are Copyright © Brainetics, LLC. ALL RIGHTS RESERVED. Unless expressly stated otherwise, Brainetics or its suppliers or licensors own and retain other proprietary rights in all products available through the Sites. Except as stated herein, none of the Content may be copied, modified, reproduced, distributed, republished, downloaded, performed, displayed, posted, transmitted, sold, or made into derivative works in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Brainetics or the respective copyright owner. You may not, without the express written permission of Brainetics or the respective copyright owner, (a) copy, publish, or post any materials on any computer network or broadcast or publications media; (b) modify the materials; or (c) remove or alter any copyright or other proprietary notices contained in the materials. You also may not (a) sell, resell, or make commercial use of the Sites, its content, or services or products obtained through the Sites; (b) collect and use of any product listings or descriptions; (c) make derivative uses of the Sites or its Content; or (d) use of any data mining, robots, or similar data gathering and extraction methods. You are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or other proprietary right of Brainetics or any third party
Trademarks: Brainetics is a registered trademark of Brainetics LLC.
Copyright Policy and Copyright Agent
It is Brainetics’s policy to respect the copyright and intellectual property rights of others. Brainetics may remove content that appears to infringe the copyright or other intellectual property rights of others. In addition, Brainetics may terminate access by users who appear to infringe the copyright or other intellectual property rights of others. Further, Brainetics complies with the Digital Millennium Copyright Act.
If you believe that Brainetics or any user of our Sites has infringed your copyright in any material way, please notify Brainetics, and provide the following:
- an identification of the intellectual property right claimed to have been infringed;
- an identification of the material that you claim is infringing so that we may locate it on the Sites;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the owner, their licensee, and agent of either of the foregoing, or the law; and
- a statement by you that the above information in your notice is accurate, made under penalty of perjury, and
that you are authorized to act on behalf of the owner of the intellectual property interest involved.
Please direct inquiries regarding intellectual property infringement issues by email to: email@example.com, or by mail to:
1444 Wazee Street, Suite 350
Denver CO 80209
Attn: Legal Department
You agree to indemnify and hold harmless Brainetics, its parents, subsidiaries, shareholders, officers, directors, employees, agents, and suppliers from any claim, action, demand, loss, or damages (including attorneys' fees) made or incurred by any third party arising out of or relating to your use of the Site, your violation of these Terms and Conditions, or your violation of any rights of a third party.
For questions about the products or services on this Site, please use the Customer Service email links found on each product page or section. For questions about orders placed through the Sites or otherwise, please contact the customer service number shown on this site.
All of our products carry a specific money back guarantee, return or exchange policy starting from the date that the product is delivered to you. Please review the information provided with your product for specific details.
To return or exchange a product, please call our Customer Service at 1-877-444-3776 Monday-Friday between 8:00 AM and 8:00 PM Eastern time and Saturday 9:00 AM to 6:00 PM Eastern time. for a Return Authorization Number and return the product within the required time period specific to your product. Products that come with a money-back guarantee will receive a refund of the purchase price, less any applicable shipping and handling. We will not be responsible for any loss or damage to returned products that occur in transit. If returned products are lost or damaged in transit, we reserve the right to charge you for, or not refund any amounts attributable to, such products or loss or damage.
Product and Service Descriptions
We have taken reasonable precautions to try to ensure that prices quoted on the Sites are correct and that all products have been fairly described. However, when ordering products or services through the Sites, please note that:
orders will only be accepted if there are no material errors in the description of the goods or services or their prices as advertised on the Sites, including, but not limited to, the event that a product is listed at an incorrect price due to typographical or other error;
- all prices are displayed in United States Dollars unless expressly indicated otherwise;
- packaging may vary from that shown on the Sites;
- any weights, dimensions, and capacities shown on the Sites are approximate only; and
- all items are subject to availability and we will inform you as soon as possible if the product(s) or service(s) you have ordered are not available and we may offer alternative product(s) or service(s) of equal or higher quality and value.
Order and Payment Information
If you use the Sites or other means to purchase a product, payment must be received by Brainetics prior to Brainetics’s acceptance of an order, unless otherwise agreed by Brainetics. All Brainetics products are subject to sales tax which will be applied to your order total. Brainetics may need to verify information you provide before Brainetics accepts an order, and may cancel or limit an order any time after it has been placed. If payment has already been made and your order is cancelled or limited, Brainetics will refund any payment you made for the product that will not be shipped due to cancellation or limitation of an order in the same tender as the original purchase. Brainetics expressly conditions its acceptance of your order on your agreement to these Terms and Conditions.
In ordering products through the Sites or otherwise, you agree to provide only true, accurate, current, and complete information. You hereby certify that any email account you provide to Brainetics is registered to you. Brainetics shall have the right to bar your access to and use of the Sites or its other products or services if it has reasonable grounds to believe that you have provided untrue, inaccurate, not current, or incomplete information to Brainetics, or for any other reason it, in its sole discretion, deems appropriate. You agree that if you are ordering or purchasing products on behalf of a company, that you have sufficient authority to bind that company to the Terms and Conditions. You agree that your placement of an electronic order on the Sites is sufficient to satisfy any applicable Statute of Frauds, and no further writing is required.
Brainetics may reject orders where the stated delivery address is outside the United States and Canada. If stated, Brainetics will add applicable shipping and handling fees.
Brainetics reserves the right without prior notice to discontinue or change specifications and prices on products offered on and outside of the Sites without incurring any obligation to you.
Brainetics’s descriptions of, or references to, products not owned by Brainetics on and outside of the Sites do not imply endorsement of that product, or constitute a warranty, by Brainetics.
Brainetics does not directly sell certain Brainetics products in any jurisdiction other than the United States of America as these products may not be approved for sale in other jurisdictions. While Brainetics may choose to accept orders for the purchase of its products from non- residents of the U.S., the acceptance of such orders and the sale of such products will only be based on the following conditions precedent:
- you agree that the purchase of any Brainetics products by you, as a non-resident of the U.S., shall be (a) ex works Brainetics’s facilities in the U.S. per Incoterms 2010, with all title risk and loss in the products passing to you in the U.S. and (b) for your own personal use only and not for further resale or distribution in any manner;
- you hereby expressly authorize and direct Brainetics to load and ship the purchased products to you to your designated ship to destination, and to contract on your behalf with a common carrier or courier company for that purpose;
- you are the principal importer of record and will undertake responsibility for all applicable taxes, shipping, customs clearance, duties and import requirements from Brainetics’s facilities in the U.S. to your foreign ship to destination; and
- the United Nations Convention on the International Sale of Goods shall not apply to any purchase or sale, and Brainetics expressly opts out of such application.
Unless otherwise noted, Brainetics will use commercially reasonable efforts to ship products within a reasonable time after receipt of your properly completed order. Although Brainetics may provide delivery or shipment timeframes or dates, you understand that those are Brainetics good-faith estimates and may be subject to change. You further understand that product availability may be limited and particular products may not be available for immediate delivery, in which case the products will be delivered when they become available. Brainetics shall not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery.
The delivery time for shipments to P.O. Boxes within the United States or for shipments outside the United States, including to U.S. territories, Alaska and Hawaii, may take up to 7-21 days.
With regards to any product made available to you on an auto-renew or monthly (or other period) subscription as sold through the Sites or otherwise (including any free trial product) (the "Product"), the default term of our agreement shall be for so long as we make the Product available to you. IF YOU HAVE PROVIDED US WITH A VALID CREDIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED (AND CHARGED TO THE ACCOUNT YOU HAVE PROVIDED) FOR ANOTHER TERM AT THE EXPIRATION OF YOUR CURRENT TERM, WHENEVER LOCAL REGULATIONS ALLOW, FOR A FEE NO GREATER THAN OUR THEN-CURRENT PRICE, EXCLUDING PROMOTIONAL AND DISCOUNT PRICING.
The new term will be for the same duration as the expired term unless otherwise specified at time of renewal. This renewal will be processed (and your card charged) within 30 days prior to the expiration of the term and each period thereafter. IF YOU DO NOT DESIRE TO HAVE YOUR SUBSCRIPTION AUTOMATICALLY RENEWED, YOU MUST, PRIOR TO THE EXPIRATION OF YOUR SUBSCRIPTION TERM, INFORM US OF YOUR INTENTION NOT TO RENEW YOUR SUBSCRIPTION TO THE PRODUCT BY CALLING OUR CUSTOMER SERVICE.
You must provide current, complete, and accurate information for your billing account. You are responsible for ensuring this information is correct and must promptly update all information to keep your billing account current, complete, and accurate (such as a change in billing address, credit card number, or credit card expiration date). You must promptly notify us if your credit card is cancelled (for example, for loss or theft). Changes to such information can be made by contacting Customer Service.
We reserve the right to refuse or discontinue the supply of the Product to any user at any time at our sole discretion.
CERTAIN WARRANTIES WITH RESPECT TO PARTICULAR PRODUCTS FOR SALE ON OR OUTSIDE THE SITES MAY BE APPLICABLE THROUGH MANUFACTURERS' WARRANTIES, THOUGH NOT THROUGH BRAINETICS. SEE THE WARRANTIES INCLUDED IN THE DOCUMENTATION ALONG WITH THE PRODUCTS FOR FURTHER DETAILS REGARDING WARRANTIES PROVIDED BY MANUFACTURERS OF PRODUCTS AVAILABLE THROUGH OR OUTSIDE THE SITES.
Disclaimer of Warranties
YOU EXPRESSLY AGREE THAT USE OF THE SITES AND OTHER PRODUCTS AND SERVICES OF BRAINETICS IS AT YOUR SOLE RISK. YOU UNDERSTAND AND AGREE THAT THE SITES AND THE INFORMATION, SERVICES, PRODUCTS, AND MATERIALS AVAILABLE THROUGH IT AND OTHERWISE ARE PROVIDED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS.
YOU ACKNOWLEDGE THAT BRAINETICS DOES NOT CONTROL IN ANY RESPECT ANY ADVERTISEMENTS, PRODUCT DESCRIPTIONS, PRODUCTS, OR CONTENT OFFERED BY THIRD PARTIES ON OR THROUGH THE SITES, INCLUDING, BUT NOT LIMITED TO, INFORMATION OR PRODUCTS PROVIDED BY LICENSE TO BRAINETICS FROM THIRD PARTIES. EXCEPT AS OTHERWISE AGREED IN WRITING, BRAINETICS AND ITS AFFILIATES ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY, OR USEFULNESS OF CONTENT OR PRODUCTS (INCLUDING PRODUCT DESCRIPTIONS) DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH OR OUTSIDE OF THE SITES. NOR DOES BRAINETICS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITES, ANY PRODUCTS OR SERVICES OFFERED OR SOLD THROUGH THE SITES, OR ITS CONTENT.
ALTHOUGH BRAINETICS STRIVES TO PREVENT THE INTRODUCTION OF VIRUSES OR OTHER DESTRUCTIVE MATERIALS TO THE SITES, BRAINETICS DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT THE SITES IS FREE OF DESTRUCTIVE MATERIALS. IN ADDITION, BRAINETICS DOES NOT WARRANT THAT ACCESS TO THE SITES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED.
BRAINETICS DISCLAIMS ANY WARRANTY OR REPRESENTATION THAT CONFIDENTIALITY OF INFORMATION TRANSMITTED THROUGH THE SITES WILL BE MAINTAINED. TO THE EXTENT ALLOWED BY LAW, BRAINETICS DISCLAIMS ALL WARRANTIES AND CONDITIONS NOT EXPLICITLY STATED HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
The terms of this section survive any termination of the Terms and Conditions.
Limitations on Liability
WE EXCLUDE ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND TERMS (WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE) TO THE FULLEST EXTENT PERMITTED BY LAW.
IN NO EVENT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL BRAINETICS OR ITS AFFILIATES BE LIABLE FOR ANY DAMAGES, CLAIMS, OR LOSSES INCURRED (INCLUDING WITHOUT LIMITATION COMPENSATORY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES), HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY ARISING IN CONNECTION WITH: (I) THE SITES; (II) THE USE OR INABILITY TO USE THE SITES; (III) THE USE OF OR RELIANCE ON ANY CONTENT OR INFORMATION DISPLAYED IN OR ON THE SITES; (IV) THE PURCHASE OR USE OF ANY PRODUCTS THROUGH THE SITES OR OTHERWISE; (V) UNAUTHORIZED ACCESS TO OR ALTERATION OR LOSS OF YOUR TRANSMISSIONS OR DATA OR OTHER INFORMATION THAT IS SENT OR RECEIVED; (VI) ERRORS, SYSTEM DOWN TIME, NETWORK OR SYSTEM OUTAGES, OR FILE CORRUPTION OR SERVICE INTERRUPTIONS; OR (VII) OTHERWISE UNDER THIS AGREEMENT/TERMS AND CONDITIONS, WHETHER OR NOT REASONABLY FORESEEABLE, EVEN IF BRAINETICS OR ITS REPRESENTATIVES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BRAINETICS’S LIABILITY TO YOU FOR ANY CAUSE OF ACTION OR CLAIM WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU IN THE LAST 120 DAYS TO BRAINETICS FOR ANY PRODUCTS SUPPLIED BY BRAINETICS THROUGH YOUR USE OF THE SITES OR OTHERWISE.
BRAINETICS WILL NOT BE LIABLE IN ANY AMOUNT FOR FAILURE TO PERFORM ANY OBLIGATION UNDER THESE TERMS AND CONDITIONS IF SUCH FAILURE IS CAUSED BY THE OCCURRENCE OF ANY UNFORESEEN CONTINGENCY BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, OR WAR.
THESE EXCLUSIONS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE UNITED STATES OF AMERICA. IF ANY PROVISION OF THESE DISCLAIMERS AND EXCLUSIONS SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE THEN THAT PROVISION SHALL BE DEEMED SEVERABLE AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS.
The terms of this section survive any termination of the Terms and Conditions.
The Sites are controlled, operated, and administered by Brainetics from its offices within the United States of America. Brainetics makes no representation that materials on the Sites are appropriate or available for use at other locations outside of the United States, and access to them from territories where the contents or products available through the Sites are illegal is prohibited. You may not use the Sites or export the content or products in violation of U.S. export laws and regulations. If you access the Sites from a location outside of the United States, you are responsible for compliance with all local laws.
Notwithstanding any of these Terms and Conditions, Brainetics reserves the right, without notice and in its sole discretion, for any reason or no reason, to terminate your ability to use the Sites and to block or prevent future access to and use of the Sites. You agree that Brainetics shall not be liable for any termination of your use of or access to the Sites.
Only you and Brainetics shall be entitled to enforce these Terms and Conditions. No third party shall be entitled to enforce any of these Terms and Conditions.
If any provision of these Terms and Conditions shall be deemed unlawful, void, or for any reason unenforceable by a court of competent jurisdiction, then that provision shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions.
The terms of this section survive any termination of the Terms and Conditions.
It is the express intent of the parties that the Terms and Conditions and all related documents have been drawn up in English.
Applicable Law and Venue
These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Colorado, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to the Terms and Conditions or your use of the Sites shall be filed only in the Superior Court of Denver County, Colorado, or the United States District Court for the Central District of Colorado, and except as stated herein you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action, or proceeding arising out of the Terms and Conditions. Notwithstanding the above, any controversy or claim related to this Agreement shall be resolved exclusively by arbitration in accordance with the Federal Arbitration Act (Title 9, U. S. Code) (the "Act"). The Act will apply even though this Agreement provides that it is governed by the laws of Colorado. Arbitration proceedings will be determined in accordance with the Act, the rules and procedures for the arbitration of financial services disputes of JAMS/Endispute, LLC, a Delaware limited liability company or any successor thereof ("JAMS"), except that discovery in said arbitration shall be limited in scope to the specifics of liability on the Claim, and any discovery related to damages calculations or any financials shall be withheld until after liability has been decided by the arbitrator(s). In the event of any inconsistency between the JAMS rules and this paragraph, the terms of this paragraph shall control. The arbitration shall be administered by JAMS and conducted in Denver, Colorado. All Claims shall be determined by one arbitrator; however, if Claims exceed Five Million Dollars, upon the request of either Brainetics or You, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced. The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the application of the statute of limitations, the service on JAMS under applicable JAMS rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement. This paragraph does not limit the right of Brainetics to: (i) exercise self-help remedies, such as, but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as, but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. The prevailing party in any action or arbitration related to these Terms and Conditions shall be entitled to its reasonable attorney fees and costs.
The terms of this section survive any termination of the Terms and Conditions.
The Terms and Conditions constitute the entire agreement between Brainetics and you with respect to your use of the Sites, your purchase of products and services through the Sites, and as applicable any products or services of Brainetics. Any cause of action you may have with respect to the Sites or Brainetics products or services must be commenced within one (1) year after the claim or cause of action arises, notwithstanding any statutes of limitation to the contrary. Any failure by Brainetics to enforce or exercise any provision of the Terms and Conditions or related right shall not constitute a waiver of that right or provision. The section titles used in the Terms and Conditions are purely for convenience and carry with them no legal or contractual effect. Nothing in these Terms and Conditions will be construed as creating a joint venture, partnership, employment, or agency relationship between you and Brainetics, and you do not have any authority to create any obligation or make any representation on Brainetics’s behalf. You may not assign or transfer any rights or obligations of these Terms and Conditions, by operation of law or otherwise, without Brainetics’s written consent. Subject to the foregoing, these Terms and Conditions will be binding on, inure to the benefit of, and be enforceable against you and Brainetics and their respective successors and assigns.
The terms of this section survive any termination of the Terms and Conditions.
Other important terms
These Terms and Conditions supersede any other terms and conditions previously published by us and any other representations or statements made by us to you, whether oral, written, or otherwise. We may assign, transfer, or sub-contract any of our rights or obligations under these Terms and Conditions to any third party at our discretion. No delay by us in exercising any right or remedy under these Terms and Conditions shall operate as waiver of that right or remedy or shall affect our ability to subsequently exercise that right or remedy. Any waiver must be agreed by us in writing.
Updated: December 12, 2013