Effective: July 15, 2021
THESE TERMS OF SERVICE CONTAIN AN ARBITRATION PROVISION. PLEASE REVIEW THE ARBITRATION SECTION FOR DETAILS.
These Terms of Service (“Terms”) govern your use of the Brain Corporation operational portal website (“Site”) and Brain Corporation BrainOS mobile application (“App”), application programming interfaces or other services offered in connection with the Site or App (collectively with the Site and App, the “Services”), all for use in conjunction with a licensed BrainOS® powered product provided under the “Brain” or “BrainOS” trademark (each, a “Robot”). Brain Corporation (“Brain” “we” or “us”) provides the Services. “You” refers to you as a user of the Services.
BY USING THE SERVICES, CLICKING A BOX INDICATING ACCEPTANCE, OR SIGNING THESE TERMS (OR A DOCUMENT REFERENCING THESE TERMS), YOU ARE AGREEING TO THESE TERMS. PLEASE READ THEM CAREFULLY.
1. Eligibility
You must be at least 18 years old and capable in your country of residence of entering into a legal binding agreement to use the Services. Additionally, you must have entered into an active license agreement with Brain or its authorized distributor(s) for use of Brain’s software or services (a “Brain Licensee”) or be an employee, agent, contractor, transferee, or other entity that a Brain Licensee appoints to use the Services on its behalf. Brain offers the Services to businesses, such as Brain Licensees, not consumers. You are using the Services as an agent of the Brain Licensee you are associated with, such as your employer.
2. Setting up an Account
There are different levels of users of the Services. You do not have to register for a user account (“Account”) to access the basic level of functionality of the Services (e.g., using the App to access information about a Robot you are operating). We call this level of user a “Session User.” To access additional functionality of the Services (e.g., using the Site to access more and/or remote information about Robots in your fleet), you may be required to register for an Account and provide certain information about yourself as prompted by the Account registration form. We call this level of user a “Persistent User.” You agree that all information you submit under your Account is true and accurate and that you will keep the information up to date.
3. Agreed Usage and Limitations
3.1 Intended Use. The Services are intended to be accessed and used for non-time-critical information about the Robots. Services may require an internet connection from a third-party provider in order to use some features. In such cases, your internet connection is subject to the fees, restrictions, terms and limitations imposed by your provider. While we aim for the Services to be highly reliable, they are not intended to be available 100% of the time. Brain does not offer any specific uptime guarantee for the Services. The Services may be subject to sporadic interruptions and failures for a variety of reasons beyond Brain’s control, including connectivity intermittency, service provider uptime, mobile notifications and carriers, among others. Some Services may be unavailable, vary (by product or geography, for example), be offered for a limited time, or require separate subscriptions. You acknowledge that Brain is not responsible for any damages allegedly caused by the failure or delay of the Services.
3.2 Temporary Suspension. The Services may be suspended temporarily without notice for security reasons, system failure, maintenance, and repair or other circumstances. You agree that you will not be entitled to any refund, rebate or other remuneration for such suspensions.
3.3 System Requirements.
You will not be able to access the Services without:
It is your responsibility to ensure you have all the required system elements and that they are compatible, properly configured and updated as needed. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met.
4. Acceptable Use of the Services
You are responsible for your use of the Services and, for Persistent Users, for any use of the Services made using your Account. When you use the Services, you must not:
5. Access to App
5.1 If you download the App from the Apple Store or Google Play App Store, subject to your compliance with these Terms and the Apple Store or Google Play App Store terms, Brain hereby grants you a non-exclusive, non-transferable, worldwide, royalty-free, limited-term right to access the App on a mobile device owned or otherwise controlled by you, strictly in accordance with the App’s documentation and these Terms.
5.2 As between the parties, Brain owns all right, title and interest in and to App, and any intellectual property rights associated with it. Brain reserves all rights in and to App not expressly granted to you in these Terms. Except as expressly permitted by these Terms, by law, or by applicable third party license, you must not and must not allow any third party to: (i) sublicense, sell, rent, lease, transfer, assign, or redistribute the App; (ii) host the App for the benefit of third parties; (iii) disclose or permit any third party to access the App, except as expressly permitted in these Terms; (iv) modify or create derivative works of the App, or merge the App with other software; (v) disassemble, decompile, bypass any code obfuscation, or otherwise reverse engineer the App or attempt to derive any of its source code, in whole or in part; (vi) modify, obscure, or delete any proprietary rights notices included in or on the App; (vii) otherwise use or copy the App in a manner not expressly permitted by these Terms; or (viii) use the App beyond its applicable term.
5.3 By using the App, you acknowledge that this section of the Terms is entered into by and between you and Brain and not with Apple, Inc. or Google, Inc. Notwithstanding the foregoing, you acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of this section and that Apple, Inc. and Google, Inc. have the right (and is deemed to have accepted the right) to enforce this section. Brain is solely responsible for the App and any content contained therein. You acknowledge that Apple, Inc. and Google, Inc. have no obligation whatsoever to furnish any maintenance and support services with respect to the App. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government "watch list" of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
5.4 In the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Brain, not Apple, Inc. or Google, Inc., will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
5.5 This Section 5 only applies to the extent that you have access to the App. Upon deletion of the App from your mobile device, all rights granted to you in this section will also terminate, and you must cease use of the App and delete all copies of the App from your mobile device and delete your Account (if you have an Account). Termination will not limit any of Brain’s rights or remedies at law or in equity.
6. Ownership
Brain owns or licenses all right, title, and interest in and to (i) the Services, including all software, text, media, and other content available on the Services (“Brain Content”); and (ii) all our trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefor and those of third-parties within the Services (“Marks”). The Services, Brain Content, and Marks are all protected under U.S. and international laws. The look and feel of and Services are copyright © Brain Corporation. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts without Brain’s express written permission.
7. Privacy
Our Privacy Policy (https://www.braincorp.com/data-privacy/) explains how we collect, use, protect, and when we share personal information and other data with others. Brain offers the Services to businesses, such as Brain Licensees, not consumers. You are using the Services as an agent of the Brain Licensee you are associated with, such as your employer. If you have an Account, you are responsible for maintaining the confidentiality of your Account information, including protecting any usernames and passwords. You are responsible for all activities that occur under your Account and you agree to notify us immediately of any unauthorized access or use of your Account. We are not responsible or liable for any damage or loss related to any unauthorized access or use of your Account.
8. Termination
We reserve the right to discontinue or otherwise not provide the Services to any user. We also reserve the right to terminate any user’s right to access the Services at any time, in our discretion. If you violate any of these Terms, including, for example, if you are no longer eligible to access the Services because you are no longer associated with an active license agreement with Brain or its authorized distributor(s) for use of Brain’s software or services, your permission to use the Services automatically terminates and you must immediately cease use of the Services and delete all copies of the App from your mobile device and delete your Account (if you have an Account).
9. Disclaimer and Limitations on Our Liability
YOU USE THE SERVICES AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRAIN AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
IN PARTICULAR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRAIN AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SERVICES, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SERVICES. BRAIN AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (IV) INTERRUPTION OF TRANSMISSION TO OR FROM THE SERVICES; (V) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SERVICES BY ANY THIRD PARTY; OR (VI) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SERVICES.
YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BRAIN OR ITS AFFILIATES BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE’VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRAIN’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THESE TERMS, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED US $50.
You understand and agree that we have set our prices and entered into these Terms with you in reliance upon the limitations of liability set forth in these Terms, which allocate risk between us and form the basis of a bargain between the parties.
10. Indemnification
To the maximum extent permitted by applicable law, you agree to indemnify and hold harmless Brain and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, any actual or alleged breach of these Terms by you or anyone using your Account. If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.
11. Arbitration Agreement & Waiver of Certain Rights
Except as set forth below, you and we agree that we will resolve any disputes between us (including any disputes between you and a third-party agent of ours) through binding and final arbitration instead of through court proceedings. You and we hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims, counterclaims, or other disputes arising between you and us or you and a third-party agent of ours (each a “Claim”) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. You and we agree that the arbitration proceedings will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration, by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies, or as specifically permitted by state law. The Federal Arbitration Act and federal arbitration law apply to the Terms. However, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of the Terms including, but not limited to, a claim that all or any part of the Terms is void or voidable.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude either party from seeking action by federal, state, or local government agencies. You and we also have the right to bring qualifying claims in small claims court. In addition, you and we retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
Neither you nor we may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or our individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. The arbitrator may award in the arbitration the same damages or other relief available under applicable law, including injunctive and declaratory relief, as if the action were brought in court on an individual basis. Notwithstanding anything to the contrary in the foregoing or herein, the arbitrator may not issue a “public injunction” and any such “public injunction” may be awarded only by a federal or state court. If either party seeks a “public injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and any prayer or claim for a “public injunction” in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party’s claim or prayer for “public injunctive relief.” In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator.
If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of these Terms. This Section of the Terms will survive the termination of your relationship with us.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
12. Other Provisions
Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws rules or provisions.
You agree that any action of whatever nature arising from or relating to these Terms, the Site, or Services will be filed only in the state or federal courts located in San Diego, California. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.
The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future.
We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.
13. Changes to these Terms
We enhance and update the Services often. As such, we reserve the right to change the Terms and/or Services, at any time in our discretion with or without notice. If we change these Terms, we will give you notice by posting the revised Terms on the Site or through the other Services. Those changes will go into effect on the revision date shown in the revised Terms. BY CONTINUING TO USE THE SERVICES, YOU ARE AGREEING TO THE REVISED TERMS.
PLEASE PRINT A COPY OF THESE TERMS FOR YOUR RECORDS AND PLEASE CHECK THE SITE AND OTHER SERVICES FREQUENTLY FOR ANY CHANGES TO THESE TERMS.
