Updated: April 1st, 2018
Posit Science’s websites, including www.BrainHQ.com, and our BrainHQ, Drivesharp, and InGear applications on the web, mobile phones, or tablets are copyrighted works belonging to Posit Science. The websites and the applications are referred to as the “Apps” in this document.
This Posit Science Group Admin Account Agreement (“Agreement”) is between Posit Science Corporation (“Posit Science,” “we,” “us” or “our) and you (“Group Admin,” “you” or “your”) and sets forth the terms and conditions under which you may provide a group (your "Group") of end users ("End Users") to whom you are providing your services access to the Apps, manage the accounts of those End Users, and provide licenses to those End Users that enable the paid features of the Apps. This Agreement specifically governs a Group Admin’s and a Group’s use of the Apps. This Agreement includes additional or different terms from the Terms and Conditions governing the general use of the Apps (“General Terms and Conditions”). The General Terms and Conditions can be found here at http://www.brainhq.com/terms. In the event of any conflict between this Agreement and the General Terms and Conditions, this Agreement shall control with respect to Group users and the use of Apps by Groups.
BY REGISTERING OR USING A GROUP ADMIN ACCOUNT (AS DESCRIBED IN SECTION 1 (GROUP ADMIN ACCOUNTS)), YOU AGREE TO BE BOUND BY THIS AGREEMENT. YOU MAY NOT REGISTER OR USE A GROUP ADMIN ACCOUNT IF YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH POSIT SCIENCE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THIS AGREENT’S TERMS AND CONDITIONS, IN WHICH CASE “YOU” OR “GROUP ADMIN” SHALL REFER TO SUCH ENTITY.
- Group Admin Accounts.
- Your Group Admin Account. In order to manage your Group, you must have a group administrator account (“Group Admin Account”). You represent and warrant that you will maintain the accuracy of the information about you in your Group Admin Account. You are responsible for maintaining the confidentiality of your Group Admin Account login information and are fully responsible for all activities that occur under your Group Admin Account. You agree to immediately notify Posit Science of any unauthorized use, or suspected unauthorized use, of your Group Admin Account or any other breach of security. Posit Science cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. Posit Science may suspend your Group Admin Account at any time without notice if we believe that you are in breach of this Agreement.
- Other Group Admin Accounts. You may provide other people in your Group with Group Admin Accounts using the tools provided in the Apps, thus allowing them to manage your Group. You will inform all such people who receive Group Admin Accounts from you prior to their use of their Group Admin Account that the use of their Group Admin Account is subject to this Agreement, and that by using their Group Admin Account they agree to be bound by and comply with this Agreement. If a person you provide with a Group Admin Account is not employed at the legal entity that employs you, you represent and warrant that the legal entity that employs you permits you to disclose both Personally Identifiable Information (PII) and Protected Health Information (PHI) regarding End Users in your Group to the person to whom you have provided a Group Admin Account.
- End User Accounts.
- End User Information. You are responsible for the creation of End User Accounts for your Group, using the tools provided in the Apps. If you and an End User who is not in your Group agree, we will add that End User to your Group, at which point you will be responsible for that End User in the same way as for an End User for whom you created an End User Account.
- End User Terms. You will inform all end users of the Apps who receive Group Licenses from you prior to such purchase or receipt that the use of the Apps is subject to the General Terms and Conditions that govern the relationship between Posit Science and such End User, and that by using the Apps the End User agrees to be bound by and comply with the General Terms and Conditions.
- End User Support. You will be solely responsible for providing End Users customer support services for inquiries that relate to (i) the issuance of Group Licenses from you, or (ii) your computing systems, software, and internet access. Posit Science will have the right to refer to you any such inquiries that are made of Posit Science by End Users. Posit Science will provide second-tier support services to you. Such second-tier support services will consist solely of responding to support requests by email or phone regarding the features of the Apps, usage of the Apps, and technical requirements for using the Apps. Posit Science will have no obligation to provide any other support or maintenance to you. Posit Science reserves the right, but will have no obligation, to provide support or maintenance directly to your End Users.
- End User Marketing. Posit Science agrees to opt-out End Users who receive Group Licenses from you from Posit Science email marketing as long as such End Users hold valid Group Licenses. Posit Science may continue to send such End Users administrative emails, such as password reset emails; and informational emails, such as the new user onboarding emails and Posit Science newsletter. Such informational emails may incidentally contain information about subscriptions to the Apps.
- End User Data.
- End User Analytics. Posit Science may offer you access to certain analytics regarding the use of the Apps by End Users (the “End User Analytics”). The End User Analytics will be deemed the Confidential Information of Posit Science, unless otherwise authorized by Posit Science as described in Section 3C (Your Use of End User Data).
- End User PII. Posit Science may disclose to you certain PII, including in connection with the End User Analytics. You will only use any PII disclosed to you as authorized in writing by Posit Science as described in Section 3C (Your Use of End User Data) and, notwithstanding anything to the contrary in Section 7 (Confidentiality), will not disclose PII to any third party, except to the extent required by applicable law or a court order or with the express, informed consent of the applicable End User. You will protect all such PII from unauthorized use, disclosure, or access.
- Describing the Apps. You will not make or publish any representations, warranties, or guarantees concerning the Apps, other than those expressly made by Posit Science on http://www.brainhq.com/. You will defend (at Posit Science’s option), indemnify and hold Posit Science harmless from and against any claims, actions, liabilities, losses, injuries, damages, costs, or expenses (including reasonable attorneys’ fees) brought by third parties that arise from or relate to any such representations, warranties, or guarantees.
- Group Licenses.
- Orders. You may place orders with Posit Science for Group Licenses. All orders will be subject to acceptance by Posit Science in its sole discretion. Posit Science will notify you of acceptance of an order by email to the address specified in your Group Admin Account or through such other means as specified in the Apps. If Posit Science accepts the order, then Posit Science will provide you instructions on how to activate the Group Licenses through the Apps and associate them with particular End Users. The terms of this Agreement will govern all such orders submitted by you to Posit Science; no additional or inconsistent term or condition in any such order will have any legal effect. “Group License” means a nonexclusive, limited right for an End User to access and use the Apps on a term basis, subject to the Posit Science General Terms and Conditions found at http://www.brainhq.com/terms and any other terms and conditions governing the use of the Apps.
- Fees and Payment. For each order of Group Licenses accepted by Posit Science under this Agreement, you will pay Posit Science the fees set forth in Posit Science’s then-current price list as specified in the Apps or on your invoice. Upon placing an order for any Group Licenses, you will be responsible for the payment of the applicable fees as described in the Apps or on your invoice.
- Subscription Licenses. We provide Group Licenses purchased using the tools available in the Apps on an automatically recurring subscription basis with specific terms as described in the Apps. You acknowledge that we reserve the right to change our fees from time to time in our discretion, provided that any such change will not apply until your next subscription period. We will notify you of such changes by posting a notice in the Apps or sending you an email notice to the email address you provided for your Group Admin Account. All subscriptions automatically renew upon the expiration of the then-current subscription period, unless cancelled earlier, which you may do according to Section 8B (Termination) by contacting Posit Science as set forth in Section 13 (Contact Information) below. We will automatically bill your credit card or other payment method on the date that your subscription to the applicable Group License begins, and each date thereafter on which a successive subscription period begins, until you cancel your subscription to that Group License in accordance with Section 8B (Termination). You hereby authorize Posit Science to bill your credit card or other payment method as described in this Section 5. You are responsible for paying all fees and applicable taxes associated with our Group Licenses in a timely manner with a valid payment method. If your payment method fails or any amounts owed to Posit Science are past due, we may collect fees owed using other collection mechanisms (including retaining collection agencies and legal counsel) or suspend your Group Admin Account and/or access to any or all Apps (including the paid and/or the free features).
- Bulk Purchase Licenses. We provide Group Licenses purchased by invoice on a bulk purchase basis. You may purchase a non-refundable credit (the “Credit”) to be applied to the use of the Apps by your End Users and Group Admins. Each calendar month, Posit Science will track the number of people who make use of the Apps as an End-User and the number of people who make use of the Apps as a Group Admin, and will deduct from the Credit the price set forth on your invoice for each such End-User and each such Group Admin. You may purchase additional Credit from time to time with a minimum purchase amount of $1,000; and in doing so, replenish the Credit to avoid any interruption in service to your End Users and Group Admins. Any unused Credit will expire 36 months after its purchase.
- Proprietary Rights.
- License to Provide Group Licenses. Subject to the terms and conditions of this Agreement, Posit Science grants you a non-exclusive, non-transferable (except as permitted under Section 12 (General)), revocable license to directly provide Group Licenses to the Apps solely to End Users in the territory designated by Posit Science (“Territory”) while you have an active Group Admin Account.
- License to Demo. Subject to the terms and conditions of this Agreement, Posit Science grants you a limited, non-exclusive, royalty-free, non-transferable, personal, revocable license, without right to sublicense, (i) to access and use Apps for your own internal training of your employees and agents, and (ii) to demonstrate and market the Apps to customers and potential customers (“Demo License”). You are not entitled to use the Apps for any other purpose under the Demo License. Â
- Transfers. You may transfer, and permit the transfer of, any valid Group License from one End User to another End User using the tools provided in the Apps.
- Restrictions. You agree not to, and not to allow any third party to (a) reproduce, modify, adapt, alter, translate, or create derivative works from the Apps; (b) distribute, sublicense, sell, lease, rent, loan, make available, or otherwise transfer the Apps to any third party, except as expressly permitted in Section 6A (License to Provide Groups Licenses); (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Apps; (d) sell, lease, rent, loan, or otherwise transfer any Group License, in whole or in part, to any third party except as expressly permitted in Sections 6A (License to Provide Group Licenses) or 6C (Transfers); or (e) use the Apps, information about the Apps or information or data derived from the Apps in a research study without prior written approval from Posit Science.
- Trademark and Collateral License. Subject to the terms and conditions of this Agreement, Posit Science grants to you a non-exclusive, non-transferable (except as permitted under Section 12 (General)), revocable license (without the right to grant sublicenses) to (a) use and display the trademarks, service marks, and logos provided to you by Posit Science (collectively, the “Marks”) solely in connection with promoting the Apps in the Territory; and (b) use, reproduce, and distribute the publicly available content on http://www.brainhq.com/ regarding the Apps (“Collateral”) solely in connection with promoting the Apps in the Territory. You will not modify, edit, or translate the Collateral in any way, except as permitted by Posit Science in writing. You will provide Posit Science with a sample of each proposed use of Marks and/or Collateral upon request. You will use the Marks in the form provided and in conformance with any trademark usage policies provided, from time to time, by Posit Science to you. You acknowledge Posit Science’s exclusive ownership of the Marks and Collateral. You agree not to take any action inconsistent with such ownership and will cooperate, at Posit Science’s request and expense, in any action which Posit Science deems necessary or desirable to establish or preserve Posit Science’s exclusive rights in and to the Marks. Upon request, you will immediately cease all use and display of the Marks and use, reproduction, and distribution of the Collateral.
- Ownership of Apps. The Apps, and all worldwide intellectual property rights therein, are the exclusive property of Posit Science and its suppliers. There are no implied licenses granted hereunder, and all rights in and to the Apps not expressly granted to you in this Agreement are reserved by Posit Science and its suppliers.
- Confidentiality. You agree to hold Posit Science’s Confidential Information in strict confidence and to refrain from any disclosure, use or publication of such Confidential Information, except as expressly authorized in writing by Posit Science, during the term of this Agreement and thereafter. “Confidential Information” means any and all information related to Posit Science’s business that is labeled or identified as “confidential” or “proprietary” or that you otherwise know, or would reasonably be expected to know, Posit Science considers to be confidential or proprietary. Your obligations set forth in this Section 7 shall not apply with respect to any portion of the Confidential Information that (a) was in the public domain at the time it was communicated to you by Posit Science; (b) entered the public domain not through your fault, subsequent to the time it was communicated to you by Posit Science; (c) was in your possession free of any obligation of confidence at the time it was communicated to you by Posit Science; (d) was rightfully communicated to you free of any obligation of confidence subsequent to the time it was communicated to you by Posit Science; or (e) was developed by your employees or agents independently of and without reference to any information communicated to you by Posit Science. You may disclose Posit Science’s Confidential Information in response to a valid order by a court or other governmental body, or as otherwise required by law, after having given Posit Science sufficient prior notice to permit Posit Science a reasonable opportunity to lodge objections to such disclosure. As between Posit Science and you, all Confidential Information furnished to you by Posit Science is the sole and exclusive property of Posit Science. Upon request by Posit Science, you agree to (i) promptly deliver to Posit Science, or destroy, at Posit Science’s option, the original and any copies of the Confidential Information and (ii) permanently erase all electronic copies of the Confidential Information.
- Term and Termination.
- Term. The term of this Agreement will begin on the date that you register for or first use your Group Admin Account and will continue until terminated pursuant to Sections 8B (Termination) or 11 (Amendment).
- Termination. You may terminate this Agreement for any reason or no reason by contacting Posit Science at email@example.com and requesting that we delete your Group Admin Account. We will do so within 5 business days, which will terminate this Agreement. We may terminate this Agreement for any reason or no reason upon sixty (60) days prior written notice to you. Either party may terminate this Agreement, effective immediately upon written notice to the other party, if such other party breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party.
- Effects of Termination. Upon termination or expiration of this Agreement for any reason, any amounts owed to Posit Science under this Agreement before such termination or expiration will be immediately due and payable, all licensed rights granted in this Agreement will immediately cease to exist, and you must promptly discontinue all further use of the Marks and Collateral and all further marketing and resale of the Group Licenses, and cease any use of the Apps under the Demo License. Notwithstanding anything to the contrary, all Group Licenses granted to End Users will survive until their term ends. Sections 3 (Privacy), 4 (Describing the Apps) (only with respect to the indemnification and defense obligations), 5B (Fees & Payments) (to the extent any payment obligations have accrued), 6D (License Restrictions), 6E (Ownership of Apps), 7 (Confidentiality), 8C (Effects of Termination), 9 (Warranty Disclaimer), 10 (Limitation of Liability), 11 (Amendment), and 12 (General) will survive expiration or termination of this Agreement for any reason.
- Warranty Disclaimer. POSIT SCIENCE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE APPS AND COLLATERAL, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. YOU ACKNOWLEDGE THAT NO WARRANTIES ARE MADE BY ANY OF POSIT SCIENCE’S SUPPLIERS.
- Limitation of Liability. IN NO EVENT WILL POSIT SCIENCE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, THE APPS, OR THE COLLATERAL, EVEN IF POSIT SCIENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. POSIT SCIENCE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE APPS, AND THE COLLATERAL, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO POSIT SCIENCE BY YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE FIRST CLAIM TO ARISE UNDER THIS AGREEMENT. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMITATION. You acknowledge that the fees set forth in this Agreement reflect the allocation of risk set forth in this Agreement and that Posit Science would not enter into this Agreement without these limitations on its liability. You agree that Posit Science’s suppliers will have no liability of any kind under or as a result of this Agreement.
- Amendment. This Agreement may be amended by Posit Science from time to time. If we make material changes to this Agreement, we may notify you in accordance with the notice procedure set forth in Section 12 (General) below. These changes will be effective thirty (30) calendar days following our dispatch of an email notice to you. If you object to any change, your sole recourse shall be to immediately terminate this Agreement upon notice to Posit Science. Except as otherwise provided in this Section 11, no amendment to this Agreement will be valid.
- General. This Agreement will be governed by the laws of the State of California without giving effect to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California or in state court in San Francisco County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. You may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement or delegate any of its duties under this Agreement to any third party without Posit Science’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. Posit Science may freely assign or transfer this Agreement, in whole or in part. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. If any provision in this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. You acknowledge that the Apps contains valuable trade secrets and proprietary information of Posit Science, that any actual or threatened breach of 6D (Restrictions) or Section 7 (Confidentiality) will constitute immediate, irreparable harm to Posit Science for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. You will comply with all applicable export and import control laws and regulations in connection with the Apps and this Agreement. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible. Your relationship to Posit Science is that of an independent contractor, and neither party is an agent or partner of the other. You will not have, and will not represent to any third party that it has, any authority to act on behalf of Posit Science. All notices to you under this Agreement including those described as "written" will be delivered to your email address specified in your Group Admin Account. You are responsible at all times for updating your Group Admin Account to provide to Posit Science your most current email address. If the last email address that you have provided to Posit Science is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice. All notices to Posit Science must be delivered to the address set forth below in Section 13 (Contact Information) by certified or registered mail (postage prepaid and return receipt requested), and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. We may change our notice address by giving you notice of the new address. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. This Agreement constitutes the entire agreement between you and Posit Science regarding the subject matter hereof. The Apps may contain additional terms and conditions relating to the Group Licenses, which will be posted therein and are hereby made a part of this Agreement. In the event of any conflict or inconsistency between the terms and conditions contained herein and any such additional terms and conditions, the additional terms and conditions will control but solely with respect to the subject matter thereof.
- Contact Information. If you have any questions about this Agreement, please contact Posit Science by email at firstname.lastname@example.org or by writing to Posit Science at Posit Science Corporation, 160 Pine St., Suite 200, San Francisco, CA 94111, in each case marking the message “Attention: Group Admin Account Agreement.”