BrainTivity Terms of Service

1. ACCEPTANCE OF TERMS

BrainTivity Inc. ("BrainTivity") welcomes you. BrainTivity provides the BrainTivity Services (defined below) to you subject to the following Terms of Service ("TOS"), which may be updated by us from time to time without notice to you.  By accessing and using the BrainTivity Services, you accept and agree to be bound by the terms and provision of the TOS. In addition, when using particular BrainTivity owned or operated services, you and BrainTivity shall be subject to any posted guidelines or rules applicable to such services, which may be posted and modified from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS. BrainTivity may also offer other services that are governed by different Terms of Service. For instance, different terms apply to members of IBM on BrainTivity or Educational BrainTivity Service.

2. DESCRIPTION OF BRAINTIVITY SERVICES

BrainTivity provides users with access to a rich collection of resources, including without limitation various communications tools, literature, forums, games, educational tools, game networks, reporting and analytics, and branded programming through its network of properties which may be accessed through any various medium or device now known or hereafter developed (the "BrainTivity Services"). You also understand and agree that the BrainTivity Services may include advertisements and that these advertisements are necessary for BrainTivity to provide the BrainTivity Services. You also understand and agree that the BrainTivity Services may include certain communications from BrainTivity, such as service announcements, administrative messages and the BrainTivity Newsletter, and that these communications are considered part of BrainTivity membership and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augments or enhances the current BrainTivity Services, including the release of new BrainTivity properties, shall be subject to the TOS. You understand and agree that the BrainTivity Services is provided "AS-IS" and that BrainTivity assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications, personalization settings, educational entries, or any activity within the BrainTivity Services. You are responsible for obtaining access to the BrainTivity Services, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the BrainTivity Services.

You understand that the technical processing and transmission of the BrainTivity Services, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

3. YOUR REGISTRATION OBLIGATIONS

In consideration of your use of the BrainTivity Services, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the BrainTivity Services under the laws of Canada or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the BrainTivity Service's registration form (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or BrainTivity has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, BrainTivity has the right to suspend or terminate your account and refuse any and all current or future use of the BrainTivity Services (or any portion thereof). BrainTivity is concerned about the safety and privacy of all its users, particularly children. For this reason, parents of children under the age of 13 who wish to allow their children access to the BrainTivity Services must create a BrainTivity Family Account. When you create a BrainTivity Family Account and add your child to the account, you certify that you are at least 18 years old and that you are the legal guardian of the child/children listed on the BrainTivity Family Account. By adding a child to your BrainTivity Family Account, you also give your child permission to access many areas of the BrainTivity Services, including, message boards and the game network (among others). Please remember that the BrainTivity Services is designed to appeal to a broad audience. Accordingly, as the legal guardian, it is your responsibility to determine whether any of the BrainTivity Services areas and/or Content (as defined in Section 6 below) are appropriate for your child.

4. BRAINTIVITY PRIVACY POLICY

Registration Data and certain other information about you are subject to our applicable privacy policy. For more information, see the full BrainTivity Privacy Policy at http://www.braintivity.com/privacy/.  You understand that through your use of the BrainTivity Services you consent to the collection and use (as set forth in the applicable privacy policy) of this information, including the transfer of this information to Canada and/or other countries for storage, processing and use by BrainTivity and its affiliates.

5. MEMBER ACCOUNT, PASSWORD AND SECURITY

You will receive a password and account designation upon completing the BrainTivity Service's registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify BrainTivity of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. BrainTivity cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 5.

6. MEMBER CONDUCT

You understand that all information, data, text, game questions and answers, music, sound, photographs, graphics, video, messages, tags, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not BrainTivity, are entirely responsible for all Content that you upload, post, transmit or otherwise make available via the BrainTivity Services. BrainTivity does not control the Content posted via the BrainTivity Services and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the BrainTivity Services, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will BrainTivity be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the BrainTivity Services.

You agree to not use the BrainTivity Services to:

a.        upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, inaccurate, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;

b.       harm minors in any way;

c.        impersonate any person or entity, including, but not limited to, a BrainTivity official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;

d.       forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the BrainTivity Service;

e.       upload, post, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

f.         upload, post, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;

g.        upload, post, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation.

h.       upload, post, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

i.         disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the BrainTivity Services are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;

j.         interfere with or disrupt the BrainTivity Services or servers or networks connected to the BrainTivity Services, or disobey any requirements, procedures, policies or regulations of networks connected to the BrainTivity Services, including using any device, software or routine to bypass our robot exclusion headers;

k.        intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by Ontario Securities Commission, any rules of any national or other securities exchange, including, without limitation, the Toronto Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;

l.         provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by Canada government as a foreign terrorist organization;

m.      "stalk" or otherwise harass another; and/or

n.       collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through m above.

You acknowledge that BrainTivity may or may not pre-screen Content, but that BrainTivity and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content that is available via the BrainTivity Services. Without limiting the foregoing, BrainTivity and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by BrainTivity or submitted to BrainTivity, including without limitation information in BrainTivity Games, Message Boards, and in all other parts of the BrainTivity Services.

You acknowledge, consent and agree that BrainTivity may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the TOS; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of BrainTivity, its users and the public.

You understand that the BrainTivity Services and software embodied within the BrainTivity Services may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by BrainTivity and/or content providers who provide content to the BrainTivity Services. You may not attempt to override or circumvent any of the usage rules embedded into the BrainTivity Services. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the BrainTivity Services, in whole or in part, is strictly prohibited.

7. SPECIAL ADMONITIONS FOR INTERNATIONAL USE AND EXPORT AND IMPORT COMPLIANCE

Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Use of the BrainTivity Services and transfer, posting and uploading of software, technology, and other technical data via the BrainTivity Services may be subject to the export and import laws of Canada and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, you: (a) represent that you are not a party identified on any government export exclusion list, including, nor will you transfer software, technology, and other technical data via the BrainTivity Services to parties identified on such lists; (b) agree not to use the BrainTivity Services for military, nuclear, missile, chemical or biological weaponry end uses in violation of Canadian export laws; (c) agree not to transfer, upload, or post via the BrainTivity Services any software, technology or other technical data in violation of Canadian or other applicable export or import laws.

8. CONTENT SUBMITTED OR INFORMATION COLLECTED FOR INCLUSION ON THE BRAINTIVITY SERVICES

With respect to Content you submit or Information collected for inclusion on the BrainTivity Services, you grant BrainTivity the following worldwide, royalty-free and non-exclusive license(s), as applicable:

a.        With respect to Information collected during your BrainTivity Services session, including but not limited to results of game play, multiplayer sessions, reporting and analytics, the license to use, distribute, reproduce, modify, or adapt in order to provide summary or detail statistical information by country, specific regions or various user groups.

b.       With respect to Content you submit within BrainTivity , the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the BrainTivity Services solely for the purposes of providing and promoting the specific BrainTivity Group to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the BrainTivity Services and will terminate at the time you remove or BrainTivity removes such Content from the BrainTivity Services.

c.        With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the BrainTivity Services other than BrainTivity Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the BrainTivity Services solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the BrainTivity Services and will terminate at the time you remove or BrainTivity removes such Content from the BrainTivity Services.

d.       With respect to Content other than photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the BrainTivity Services other than BrainTivity Groups, the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.

"Publicly accessible" areas of the BrainTivity Services are those areas of the BrainTivity network of properties that are intended by BrainTivity to be available to the general public. By way of example, publicly accessible areas of the BrainTivity Services would include BrainTivity Message Boards and portions of BrainTivity Service. However, publicly accessible areas of the BrainTivity Services would not include portions of BrainTivity Groups that are limited to specific members, BrainTivity services intended for private communication such as BrainTivity Messenger, or areas off of the BrainTivity network of properties such as portions of World Wide Web sites that are accessible via hypertext or other links but are not hosted or served by BrainTivity.

9. CONTRIBUTIONS TO BRAINTIVITY

By submitting ideas, suggestions, documents, and/or proposals ("Contributions") to BrainTivity through its suggestion or feedback webpages, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) BrainTivity is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) BrainTivity shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) BrainTivity may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of BrainTivity without any obligation of BrainTivity to you; and (f) you are not entitled to any compensation or reimbursement of any kind from BrainTivity under any circumstances.

10. INDEMNITY

You agree to indemnify and hold BrainTivity and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit, modify or otherwise make available through the BrainTivity Services, your use of the BrainTivity Services, your connection to the BrainTivity Services, your violation of the TOS, or your violation of any rights of another.

11. NO COMMERCIAL REUSE OF BRAINTIVITY SERVICES

You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the BrainTivity Services (including Content, advertisements, Software and your BrainTivity ID).

12. GENERAL PRACTICES REGARDING USE AND STORAGE

You acknowledge that BrainTivity may establish general practices and limits concerning use of the BrainTivity Services, including without limitation the maximum number of days that reports and analytics, message board postings or other uploaded Content will be retained by the BrainTivity Services, the maximum number of messages that may be sent from or received by an account on the BrainTivity Services, the maximum size of any message that may be sent from or received by an account on the BrainTivity Services, the maximum disk space that will be allotted on BrainTivity's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the BrainTivity Services in a given period of time. You agree that BrainTivity has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the BrainTivity Services. You acknowledge that BrainTivity reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that BrainTivity reserves the right to modify these general practices and limits from time to time.

13. MODIFICATIONS TO BRAINTIVITY SERVICES

BrainTivity reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the BrainTivity Services (or any part thereof) with or without notice. You agree that BrainTivity shall not be liable to you or to any third party for any modification, suspension or discontinuance of the BrainTivity Services (or any part thereof).

14. TERMINATION

You may terminate your BrainTivity account, and access to the BrainTivity Services by submitting such termination request to BrainTivity.

You agree that BrainTivity may, without prior notice, immediately terminate, limit your access to or suspend your BrainTivity account, and access to the BrainTivity Services. Cause for such termination, limitation of access or suspension shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b)requests by law enforcement or other government agencies, (c) discontinuance or material modification to the BrainTivity Services (or any part thereof), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity, (f) engagement by you in fraudulent or illegal activities, and/or (g) nonpayment of any fees owed by you in connection with the BrainTivity Services. Further, you agree that all terminations, limitations of access and suspensions for cause shall be made in BrainTivity's sole discretion and that BrainTivity shall not be liable to you or any third party for any termination of your account, or access to the BrainTivity Services.

Termination of your BrainTivity account includes any or all of the following: (a) removal of access to all or part of the offerings within the BrainTivity Services, (b) deletion of your password and all related information, files and Content associated with or inside your account (or any part thereof), and (c) barring of further use of all or part of the BrainTivity Services.; (d) any fees paid or accrued hereunder will be deemed non-refundable.

15. DEALINGS WITH ADVERTISERS

Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the BrainTivity Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that BrainTivity shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the BrainTivity Services.

16. LINKS

The BrainTivity Services may provide, or third parties may provide, links to other World Wide Web sites or resources. You acknowledge and agree that BrainTivity is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that BrainTivity shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.

17. BRAINTIVITY'S PROPRIETARY RIGHTS

You acknowledge and agree that the BrainTivity Services and any necessary software used in connection with the BrainTivity Services ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. This includes, but is not limited to the patterns and images used within the Software, game and process methodologies, and algorithms used within the BrainTivity Services. You further acknowledge and agree that Content contained in advertisements or information presented to you through the BrainTivity Services or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly permitted by applicable law or as authorized by BrainTivity or the applicable licensor (such as an advertiser), you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on the BrainTivity Services, such Content or the Software, in whole or in part.

BrainTivity grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the BrainTivity Services. You agree not to access the BrainTivity Services by any means other than through the interface that is provided by BrainTivity for use in accessing the BrainTivity Services.

18. LICENSE

The BrainTivity Services is provided under license, including but not limited to free trials, membership subscriptions, group or company contracts, and contest memberships.  Recurring subscriptions fees will be automatically renewed each billing period until you either downgrade to a contest membership, or terminate your BrainTivity account.  You are responsible for all applicable fees and charges incurred, including any applicable taxes, for any subscriptions made under your name or account(s), including your BrainTivity Family members.

19. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

a.        YOUR USE OF THE BRAINTIVITY SERVICES AND SOFTWARE ARE AT YOUR SOLE RISK. THE BRAINTIVITY SERVICES AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BRAINTIVITY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

b.       BRAINTIVITY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE BRAINTIVITY SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS; (ii) THE BRAINTIVITY SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE BRAINTIVITY SERVICES OR SOFTWARE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE BRAINTIVITY SERVICES OR SOFTWARE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

c.        ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE BRAINTIVITY SERVICES OR SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

d.       NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BRAINTIVITY OR THROUGH OR FROM THE BRAINTIVITY SERVICES OR SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.

e.       A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE BRAINTIVITY SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE BRAINTIVITY SERVICE. IMMEDIATELY DISCONTINUE USE OF THE BRAINTIVITY SERVICES AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE BRAINTIVITY SERVICE: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.

20. LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT BRAINTIVITY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BRAINTIVITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE BRAINTIVITY SERVICE; (b) THE ACCURACY OF INFORMATION WITHIN THE BRAINTIVITY SERVICES; (c) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (d) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (e) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE BRAINTIVITY SERVICE; OR (f) ANY OTHER MATTER RELATING TO THE BRAINTIVITY SERVICE.

21. EXCLUSIONS AND LIMITATIONS

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 18 AND 19 MAY NOT APPLY TO YOU.

22. NO THIRD-PARTY BENEFICIARIES

You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement.

23. NOTICE

BrainTivity may provide you with notices, including those regarding changes to the TOS, including by but not limited to email, regular mail, SMS, MMS, text message, postings on the BrainTivity Services, or other reasonable means now known or hereafter developed. Such notices may not be received if you violate this TOS by accessing the BrainTivity Services in an unauthorized manner. Your agreement to this TOS constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed the BrainTivity Services in an authorized manner.

24. TRADEMARK INFORMATION

You agree that all of BrainTivity’s trademarks, trade names, service marks and other BrainTivity logos and brand features, and product and service names are trademarks and the property of BrainTivity Inc. (the "BrainTivity Marks"). Without BrainTivity's prior permission, you agree not to display or use in any manner the BrainTivity Marks.

25. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT

BrainTivity respects the intellectual property of others, and we ask our users to do the same. BrainTivity may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide BrainTivity's Copyright Agent the following information:

a.        an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

b.       a description of the copyrighted work or other intellectual property that you claim has been infringed;

c.        a description of where the material that you claim is infringing is located on the site;

d.       your address, telephone number, and email address;

e.       a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

f.         a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

BrainTivity's Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:

By mail:

Copyright Agent

c/o BrainTivity Inc.

543 Richmond Street West, Suite 223

Toronto, ON M5V 1Y6

By email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

26. GENERAL INFORMATION

Entire Agreement. The TOS constitutes the entire agreement between you and BrainTivity and governs your use of the BrainTivity Services, superseding any prior version of this TOS between you and BrainTivity with respect to the BrainTivity Services. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other BrainTivity services, affiliate services, third-party content or third-party software.

Choice of Law and Forum. You and BrainTivity each agree that the TOS and the relationship between the parties shall be governed by the laws of Canada without regard to its conflict of law provisions and that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the TOS, or the relationship between you and BrainTivity, shall be brought exclusively in the courts located in Toronto, Ontario. You and BrainTivity agree to submit to the personal jurisdiction of the courts located within Toronto, Ontario, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.

Waiver and Severability of Terms. The failure of BrainTivity to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.

No Right of Survivorship and Non-Transferability. You agree that your BrainTivity account is non-transferable and any rights to your BrainTivity ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated.

Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the BrainTivity Services or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

The BrainTivity Services contains Adobe Flash™ Player software by Adobe Systems Inc. Copyright ©1995—2006 Adobe Systems Inc. All rights reserved. Adobe, Shockwave and Flash are trademarks of Adobe Systems Inc. All other trademarks are the property of their respective owners.

The section titles in the TOS are for convenience only and have no legal or contractual effect.

27. VIOLATIONS

Please report any violations of the TOS to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Last updated August 8, 2009