TheBrain Cloud Services Terms of Service

Last updated May 2, 2012

Agreement

This Agreement governs your access to and use of the TheBrain Cloud Services site at http://webbrain.com ("TBCS") and its affiliated software and documentation, provided by TheBrain Technologies LP ("TheBrain").

By using TBCS you represent and warrant that you have read, understand, have the legal capacity to, and hereby agree to be legally bound by this Agreement. TheBrain reserves the right to change, modify, or otherwise alter this Agreement at any time. The most recent version of this Agreement can be found on the TBCS site. Any modifications shall become effective immediately upon the posting thereof. If you do not agree to the revised terms and conditions, your sole recourse is to immediately stop use of TBCS. Your continued use of TBCS following the posting of modifications will constitute your acceptance of the revised agreement.

Services

TBCS provides capabilities including the ability to access, share, back up, edit, and synchronize content between computers ("Services").

By submitting content to TBCS (from a browser, from TheBrain Desktop Software (formerly known as PersonalBrain) or TheBrain Mobile Software, or from any other software), you grant TheBrain an irrevocable, royalty-free, worldwide license to use, copy, publicly display and otherwise use the content only as necessary to provide the Services. You warrant that you have all necessary rights in and to all content that you submit.

THEBRAIN RESERVES THE RIGHT TO TERMINATE YOUR ACCESS TO TBCS AND REMOVE YOUR CONTENT AT THEBRAIN'S SOLE DISCRETION FOR ANY REASON INCLUDING BUT NOT LIMITED TO THE VIOLATION OF THE FOLLOWING RULES:

  • You may not submit content:
    • infringing on the rights of others, including intellectual property rights
    • that is false or misleading, defamatory, pornographic, excessively violent, obscene, or otherwise inappropriate
    • that invades another's privacy
    • promoting bigotry, racism, hatred or harm against any individual or group
    • containing viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another's computer or property
  • You may not use TBCS in a way that causes excessive use of bandwidth as determined solely at the discretion of TheBrain.
  • You may not attempt to disrupt or otherwise harm TheBrain, its computer systems or network.
  • You may not attempt to gain access to information which is not intended for your use.
  • You may not attempt to reverse engineer, decompile, disassemble, or copy any software used or provided by TheBrain.

Payments and Renewals

TheBrain provides some TBCS services free of charge and some services for a paid fee ("Pro Services"). TheBrain reserves the right to change the fee and composition of Pro Services and to institute new charges at any time, upon thirty (30) days prior notice to you by email. TheBrain reserves the right to terminate free services at any time with or without notice. Without limiting the foregoing, TheBrain reserves the right to remove any or all of your content if you have not paid for Pro Services and your account is not used for 90 days.

Pro Services are paid for on a monthly or yearly renewing term. Unless you notify TheBrain via a phone call to +310-751-5000 no later than five days prior to the conclusion of the term, at end of the term, TheBrain will automatically renew the service for the same term and will charge your credit card on the first day of the renewal term. If payment is not received for any reason, your Pro Services will become unavailable. If your payments go into arrears, your account may be frozen, and your content may become unavailable and/or be permanently deleted unless all outstanding payments are made within 30 days.

TBCS provides a 30 day free trial of Pro Services. Once you have paid for Pro Services whether for a yearly or monthly term, all fees are non-refundable. This includes payments made as part of an automatic renewal.

Privacy

TheBrain respects your privacy. With the exception of your name and contact information, the information you submit to TBCS will only be used for the purpose of providing you the Services. Your name and contact information may also be used to send you information about your account and occasional news and announcements relevant to TBCS.

Licenses

By this Agreement, TheBrain grants you a limited, non-exclusive and non-transferable right and license to use TBCS subject to the terms and conditions of this Agreement. TheBrain grants you no other license or rights with respect to TBCS, the associated software, documentation or any other work or invention of TheBrain, including without limitation the right to reproduce or distribute copies, prepare derivative works or improvements, make, use, sell, offer to sell, import or export.

Except for the licenses granted herein, you have no right, title or interest in or to TBCS. TheBrain retains all title, copyright and other proprietary rights in TBCS. You acknowledge that TBCS is patented and patent pending technology and that you have no right to seek to obtain a patent or other proprietary rights in any aspect or derivative of the Software.

No Warranties

EXCEPT AS EXPRESSLY PROVIDED HEREIN, TBCS IS PROVIDED "AS IS," AND THEBRAIN DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING. YOU ACKNOWLEDGE THAT USE OF TBCS MAY RESULT IN UNEXPECTED RESULTS, LOSS OR CORRUPTION OF DATA OR COMMUNICATIONS, PROJECT DELAYS, OTHER UNPREDICTABLE DAMAGE OR LOSS, OR EXPOSURE OF YOUR DATA OR YOUR FILES TO UNINTENDED THIRD PARTIES. THEBRAIN MAKES NO REPRESENTATION WITH RESPECT TO THE ADEQUACY OF TBCS FOR ANY PARTICULAR PURPOSE OR WITH RESPECT TO ITS ADEQUACY TO PRODUCE ANY PARTICULAR RESULT. THEBRAIN SHALL NOT BE LIABLE FOR LOSS OR DAMAGE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF TBCS BY YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THEBRAIN OR THEBRAIN'S AUTHORIZED REPRESENTATIVE SHALL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.

Limitations on Liability

UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL THEBRAIN BE LIABLE FOR ANY LOST REVENUE OR PROFITS OR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE TBCS OR ANY SERVICES RELATING TO THIS AGREEMENT REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES AND EVEN IF THEBRAIN OR THEBRAIN'S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THEBRAIN'S LIABILITY TO CUSTOMER FOR DAMAGES, LOSSES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE FEES OF ATTORNEYS AND OTHER PROFESSIONALS) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU TO THEBRAIN FOR USE OF TBCS.

Miscellaneous

Any action arising under or related to this Agreement as well as the terms of this Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. In any action arising under or related to this Agreement, you hereby consent to the personal jurisdiction and venue of the state and federal courts located in Los Angeles County of the State of California.

If you are in the European Union, you understand and consent to the processing of personal information in the United States.

To the extent that any of the provisions of this Agreement, or any word, phrase, clause, or sentence thereof, is found to be illegal or unenforceable for any reason, that provision, word, phrase, clause, or sentence will be reformed or deleted only to the extent necessary to make this Agreement as reformed legally enforceable. That reformation or deletion will not affect the balance of the provisions or parts of this Agreement, which are to be construed as severable and independent.

The failure of TheBrain to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision.

This Agreement constitutes the entire agreement between you and TheBrain with respect to its subject matter, and supersedes any and all written or oral agreements previously existing with respect to such subject matter.