Updated: January 1, 2022
These Terms of Service apply to you if you create a BrainHQ account on or after January 1st, 2022. If you created your BrainHQ account before that date, these Terms of Service will apply to you if you continue to use your account on or after January 31st, 2022.
Your use of Posit Science’s Apps is subject to the terms and conditions set forth below (these “Terms of Service”).
Please read these Terms of Service carefully. By using the Apps, creating an Account (defined below), or paying for the Apps (defined below), you agree to be bound by these Terms of Service and represent and warrant that you are (a) at least 18 years old or (b) you are at least 13 years old and have your parent’s or legal guardian’s permission to use the Apps. If you (x) are under the age of eighteen and not a permitted user or (y) do not wish to be bound by these Terms of Service, you may not access or use the Apps or create an Account.
These Terms of Service contain very important information about your rights and obligations, and limitations and exclusions that may apply to you, including a choice of law provision and a forum selection clause.
For these Terms of Service, the following definitions apply:
“Apps” means Posit Science’s websites, including www.BrainHQ.com, and our BrainHQ applications on the web, mobile phones, or tablets. The Apps are copyrighted works belonging to Posit Science.
“Posit Science,” “we,” “us,” or “our” means Posit Science Corporation.
- Account. In order to access and use our Apps, you must have an account (“Account”) that contains certain information about you that is submitted by you. Account information includes, but is not limited to, your name, email address, and password; and other information about yourself that you may choose to enter into the Apps (“Account Information”). You represent and warrant that (a) all required information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions in the App or contacting us at email@example.com. We may suspend or terminate your Account in accordance with Section 12 (Termination). You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify us of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. We cannot and will not be liable for any loss or damage arising from your failure to comply with these requirements.
- Access. You may be provided with Free Access to our Apps, or you may purchase Paid Access to our Apps, or you may be provided with Sponsored Access to our Apps.
- Free Access. We provide access to certain features in our Apps on a free basis (“the Free Offering”). To use the Free Offering, you must register for an Account on our Apps.
- Paid Access. We provide access to certain features in our Apps on a paid basis (each a “Paid Offering”). To use any Paid Offering, you will be responsible for the payment of the applicable fees as described in our Apps. You hereby authorize us to bill your credit card or other payment method as provided in the Apps. You are responsible for paying all fees and applicable taxes associated with our Paid Offerings 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 Account and/or access to any or all (whether or not a Paid Offering) Apps. For Paid Offerings that are paid with a recurring subscription, we will automatically bill your credit card or other payment method on the date that your subscription to the applicable Paid Offering begins, and each date thereafter on which a successive subscription period begins, until you cancel your subscription to that Paid Offering. All subscriptions automatically renew upon the expiration of the then-current subscription period, unless cancelled earlier, which you may do by using the features provided in the Apps or contacting us as set forth in Section 24 (Contact Information) below. You acknowledge that we reserve the right to change our fees from time to time at our discretion. We will notify you of such changes by posting a notice on our Apps or sending you an e-mail notice to the e-mail address you provided for your Account. If we change our subscription fees, any such change will not apply until your next subscription period.
- Sponsored Access. Our business partners (“Partners”) provide their members, clients, patients, and/or customers access to certain features in our Apps generally comparable to our Paid Offering (each a “Sponsored Offering”). To use a Sponsored Offering, the Partner must instruct us to provide you with the Sponsored Offering. We may suspend or terminate your Account at the Partner’s instructions. The exact features in your Sponsored Offering may vary from those in the Paid Offering. The Partner providing you with your Sponsored Offering may require additional terms of service for you to use the Sponsored Offering, and may offer additional protections to you in addition to these Terms of Service. If you have questions about these additions, you should contact the Partner that provides you with access to our Apps.
- Proprietary Rights
- Apps and Site Content; Ownership; and License. Posit Science owns and provides the Apps. The content and information available on the Apps (the “Site Content”) including data created as you use the Apps (“Training Data”, see item 4B) and user feedback (“Feedback”, see item 4C) but excluding Account Information and any other content submitted by users of the Apps (“User Content”, see item 4D), is owned by Posit Science and its licensors. Subject to these Terms of Service, Posit Science grants you a limited license to: (i) distribute copies of your Training Data to anyone of your choosing; (ii) access and use the Apps solely for your personal, non-commercial purposes; (iii) install and use the Apps on your own mobile phone or tablet device, in executable object code format only, for your personal, non-commercial use; and (iv) to view and print a single copy of any Site Content, each for your personal, non-commercial use. You agree not to remove any copyright, trademark or other proprietary rights notices contained in or on the Apps or Site Content; or “frame” or “mirror” any part of our Apps or Site Content without prior written consent from Posit Science. Any unauthorized use, reproduction, modification, distribution, display, or performance of the Apps or any Site Content is strictly prohibited. You shall not disassemble, reverse compile or reverse engineer any part of the Apps or Site Content. Posit Science and its licensors reserve all rights not granted in these Terms of Service.
- Training Data; Ownership; and License. The information that is created when you use our Apps; for example your usage, progress, and performance in the Apps (collectively, “Training Data”); is owned by Posit Science and its licensors. Subject to these Terms of Service, Posit Science grants you a limited license to view and print one or more copies of your Training Data for your personal, non-commercial use.
- Feedback; Ownership; and License. If you provide any comments, feedback, or suggestions to Posit Science regarding the Apps, or any of Posit Science’s services (collectively, “Feedback”), Posit Science may use such Feedback for any purpose. So that we may incorporate such Feedback into Posit Science’s Apps and/or Posit Science’s services, Posit Science alone will own all right, title, and interest, including all related intellectual property rights, in and to all such Feedback, and in consideration for your use of the Apps and Site Content, you hereby assign such Feedback to Posit Science free of charge.
- User Content; Ownership; and License. We do not claim ownership in any of the content that you provide to the Apps (for example, your name, or an image of you for your profile picture) (“User Content”). You hereby grant us a worldwide, perpetual, irrevocable, non-exclusive, fully-paid and royalty-free license, with the right to sublicense through multiple levels, to store, reproduce, perform, display, transmit, distribute, create derivative works of, and otherwise use your User Content solely in connection with providing our Apps. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to our permitted use of your User Content. You should only provide your User Content to our Apps (a) for which you are willing to grant the licenses described above and (b) for which you have sufficient rights to grant the licenses described above.
- No Implied Licenses. There are no implied licenses granted in these Terms of Service.
- Apple App Store Terms and Conditions. You acknowledge and agree that the availability of the Apps as native applications on mobile phones and tablets is dependent on the third party from which you received the Apps (“App Store”), e.g., the Apple App Store or Google Play Store. You acknowledge that these Terms of Service are between you and Posit Science and not with the App Store. Each App Store may have its own terms and conditions to which you must agree before downloading the Apps from it including, but not limited to, Apple’s Media Services Terms and Conditions. You agree to comply with, and your license to use the Apps is conditioned upon your compliance with, all applicable terms and conditions of the applicable App Store. The following additional terms and conditions apply to you if you are using Apps from the Apple App Store. To the extent the other terms and conditions are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 4, the more restrictive or conflicting terms and conditions in this Section 4 apply, but solely with respect to Apps from the Apple App Store.
- Acknowledgement: Posit Science and you acknowledge that Terms of Service are concluded between Posit Science and you only, and not with Apple, and Posit Science, not Apple, is solely responsible for the Apps and the content thereof. To the extent these Terms of Service provide for usage rules for the Apps that are less restrictive or in conflict with those set forth for the Apps in the Apple Media Services Terms and Conditions, the more restrictive or conflicting Apple term applies.
- Scope of License: The license granted to you for the Apps is limited to a non-transferable license to use the Apps on an iOS product that you own or control and as permitted by the usage rules set forth in the Apple Media Services Terms and Conditions.
- Maintenance and Support: Posit Science is solely responsible for providing any maintenance and support services with respect to the Apps, as specified in these Terms of Service (if any), or as required under applicable law. Posit Science and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps.
- Warranty: Posit Science is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Apps to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apps to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apps, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be Posit Science’s sole responsibility.
- Product Claims: Posit Science and you acknowledge that Posit Science, not Apple, is responsible for addressing any claims of you or any third party relating to the Apps or your possession and/or use of the Apps, including, but not limited to: (i) product liability claims; (ii) any claim that the Apps fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. These Terms of Service do not limit Posit Science’s liability to you beyond what is permitted by applicable law.
- Intellectual Property Rights: Posit Science and you acknowledge that, in the event of any third party claim that the Apps or your possession and use of the Apps infringes that third party’s intellectual property rights, as between Posit Science and Apple, Posit Science, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
- Legal Compliance: 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 list of prohibited or restricted parties.
- Developer Name and Address: Posit Science’s contact information for any end-user questions, complaints, or claims with respect to the Apps is set forth in Section 24 (Contact Information).
- Third Party Terms of Agreement: You must comply with applicable third party terms of agreement when using the Apps.
- Third Party Beneficiary: Posit Science and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service, and that, upon your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as a third party beneficiary thereof.
- Acceptable Use and Conduct. You are solely responsible for your User Content, except for our licensed use above. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You agree that you will use the Apps in a manner consistent with any and all applicable laws and regulations.
- Prohibited Content. You agree that you will not post, exchange, make available, provide, or process any Prohibited Content on the Apps. “Prohibited Content” means content that: (a) we believe, in our sole discretion, is objectionable, offensive, harmful (i.e., computer viruses), or unlawful or content that may cause harm to us, our Apps, or other users, directly or indirectly.
- Breach. Any use of our Apps in violation of these Terms of Service may result in, among other things, immediate suspension or termination of your Account and/or suspension or termination of your rights to use our Apps. All suspension decisions are made in our sole discretion and may be made without prior notice to you.
- Enforcement by Us. We have the right (but not the obligation) to review any or all portions of your User Content and delete (or modify) any of your User Content from our Apps for any reason, including if we believe, in our sole discretion, your User Content violates these Terms of Service or is Prohibited Content, or may otherwise threaten the safety of, or harm any other person, or create liability for us or any other person. We reserve the right (but have no obligation) to investigate and take appropriate action, including removing the Prohibited Content from our Apps (or modifying it), suspending or terminating your Account and/or suspending or terminating the provision of our Apps, and reporting you to law enforcement authorities, in our sole discretion, if you violate this provision or any other provision of these Terms of Service.
- No Disruption. You will not: (a) harvest, collect, gather, or assemble information or data regarding other users, including e-mail addresses, without their consent; (b) interfere with, disrupt, or create an undue burden on servers or networks connected to the Apps or violate the regulations, policies, or procedures of such networks; (c) attempt to gain unauthorized access to the Apps or other computer systems or networks connected to or used together with the Apps, through password mining or other means; (d) harass or interfere with another user’s use and enjoyment of the Apps; or (e) introduce software or automated agents or scripts to the Apps so as to produce multiple accounts, generate automated searches, requests, and queries, or to strip, scrape, or mine data from the Apps.
- Friend Network. A “Friend Network” is the network made up of you and people who you have invited, using the features provided in the Apps, to have access to certain aspects of your User Data or Training Data, as specified in the Apps. You should be careful about whom you include as part of your Friend Network because they will have access to certain aspects of your user profile, including your Account username, certain of your activities and achievements on the Apps, and any content you post to your Friend Network, including any personally identifiable information you choose to disclose.
- Third Party Sites; Other Users
- Other Users. Each user of the Apps is solely responsible for any and all of their User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other users of our Apps are solely between you and such users. You agree that Posit Science will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any user, we are under no obligation to become involved.
- General Release. You hereby release and forever discharge us (and our officers, directors, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present, and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other users of our Apps or Third Party Sites.
- CA Civil Code 1542 Release. If you are a California resident, you hereby waive California civil code section 1542 in connection with the foregoing, which states: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
- No Medical Advice. The Apps, Site Content, User Content, and your Training Data are for informational purposes only and are not intended to substitute for professional medical advice, diagnosis, or treatment. You should seek the advice of a physician or other qualified health provider with whom you have such a relationship if you have questions regarding any medical condition or if you are experiencing any symptoms of or believe you may have any medical condition, regardless of any information contained within the Apps, Site Content, User Content, or your Training Data. You should not ignore professional medical advice or delay in seeking it because of any information contained within the Apps, Site Content, User Content, or your Training Data. Furthermore, you should not interpret any information contained within the Apps, Site Content, User Content, or your Training Data as recommending any specific treatment plan, product or course of action. You should always consult your physician or other qualified health provider before starting any new treatment or stopping any treatment that has been prescribed for you by your physician or other qualified health provider. If you believe you are experiencing any negative effects or illness from using the Apps, you should immediately stop such use and contact your physician or other qualified health provider as well as Posit Science at the address specified below (Section 24, Contact Information). We do not guarantee the accuracy, completeness, or timeliness of any information contained within the Apps, Site Content, User Content, or your Training Data.
- Backups. We back up your Account Information, User Content, and your Training Data on a regular basis. You acknowledge that backups may fail, and you agree that we have no obligation to you for any such failures, or any damages related to such failures, which are outside of Posit Science’s reasonable control.
- Copyright Policy. Posit Science respects the intellectual property of others and asks that users of our Apps do the same. In connection with our Apps, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Apps who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Apps, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our Apps that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
- Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
- The designated Copyright Agent for Posit Science is:
Posit Science Corporation
160 Pine Street, Suite 200
San Francisco, CA 94111
United States of America
- Termination. These Terms of Service shall remain in full force and effect for any period of time in which you are a user. You may terminate your Account at any time and for any reason by providing notice of termination to us by sending an email to firstname.lastname@example.org. We may suspend or terminate your Account and/or suspend or terminate providing our Apps to you (a) immediately, if we, in our sole discretion, believe that you are in breach of these Terms of Service; (b) at any time, if we decide, in our sole discretion, to stop providing the applicable App by sending an e-mail to you at the e-mail address that you have provided for your Account or posting a notice on our Apps; or (c) for any or no reason, by sending an e-mail to you at the e-mail address that you have provided for your Account. If you terminate your Account, we have no obligation to refund you any fees. If we terminate your Account without cause, we will refund you a pro rata portion of any fees that you have paid for the unused portion of the applicable subscription period(s). You understand that any termination of these Terms of Service and/or your Account will involve deletion from our databases of your Account Information. We will have no liability whatsoever to you for any suspension or termination of your Account or any suspension or termination of our Apps, or any deletion of any information you have provided to us. We may modify our Apps at any time, for any reason, at our sole discretion. The following Sections will survive any termination of these Terms of Service: 2 (to the extent any amounts are owed by you as of termination of these Terms of Service), 8, 15, 16, 17, 19, and 23.
- Trademarks. All trademarks, logos, and service marks (collectively, “Marks”) displayed on the Apps are Posit Science’s property or the property of other third parties. You are not permitted to use these Marks without Posit Science’s prior written consent or the consent of the third party that owns the Marks.
- Warranty Disclaimer. Posit Science is providing the Apps and any services provided by Posit Science hereunder on an “as is” and “as available” basis for use at your own risk. Posit Science (and its suppliers) disclaims all warranties, whether express, implied, or statutory, including any warranties of title, noninfringement of third party rights, merchantability, fitness for a particular purpose, accuracy, and quiet enjoyment. Posit Science (and its suppliers) does not warrant the accuracy or completeness of the site content or that the apps or any services provided by Posit Science hereunder will be provided uninterrupted or error free or that all errors will be corrected.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so those specific limitations that are not allowed in Sections 15 (Warranty Disclaimer) and/or 16 (Limitation of Liability) above, as applicable, may not apply to you. The duration of any such warranty that may not be excluded is limited to a period of thirty (30) days after your first use of our Apps, or, if such limitation on duration is not permitted under applicable law, to the minimum period permitted under applicable law.
- Limitation of Liability. In no event shall Posit Science be liable for any indirect, incidental, special, exemplary, or consequential damages arising out of or relating to these Terms of Service, the Apps, or any service provided by Posit Science hereunder, including any damages resulting from loss of use, data, or profits, whether or not Posit Science has been advised of the possibility of such damages, on any theory of liability. Posit Science’s total cumulative liability arising out of or relating to these Terms of Service, the Apps, or any service provided by Posit Science hereunder, whether in contract, tort, or otherwise, shall not exceed the greater of the amounts paid by you in the twelve (12) months preceding the claim or one hundred dollars ($100). The existence of more than one claim will not enlarge this limit. You acknowledge that our suppliers and licensors will have no liability under these Terms of Service.
- Indemnification. You agree to indemnify and hold Posit Science and its directors, officers, employees, agents, successors, and assigns (collectively, the “Indemnified Parties”) harmless from and against any claim, liability, loss, injury, damage, cost, or expense (including attorneys’ fees) incurred by Posit Science or any Indemnified Party arising out of or relating to your: (a) use of the Apps; (b) User Content; (c) violation or breach of any provision in these Terms of Service or violation of any rights of a third party; or (d) violation of applicable laws or regulations.
- Amendment. These Terms of Service may be amended by Posit Science from time to time. If we make material changes to these Terms of Service, we may notify you by posting the revised Terms of Service on our Apps or notifying you the email you used to register your Account. You are responsible at all times for updating your Account Information to provide to us your most current e-mail address. If the last e-mail address that you have provided to us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms of Service will be effective immediately for new users of our Apps; otherwise these changes will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you or thirty (30) calendar days following our posting of a notice on our Apps. Your continued use of our Apps thirty (30) calendar days after the changes are first notified by Posit Science as described above will constitute your agreement to such changes. If you object to any change, your sole recourse shall be to immediately terminate your Account and cease using the Apps. Except as otherwise provided in this Section 18, no amendment to these Terms of Service will be valid.
- Governing Law. These Terms of Service, and any claim, dispute or controversy of any nature arising out of or relating to these Terms of Service, shall be governed by and construed solely and exclusively in accordance with the laws of the State of California, USA without giving effect to any law that would result in the application of the law of another jurisdiction. You expressly agree and consent to the exclusive jurisdiction and venue of the state and federal courts of the State of California, in the City of San Francisco, for the resolution of any such dispute.
- Intended Audience. Our Apps are maintained by Posit Science from its offices within the United States. Those who choose to access our Apps from other locations do so on their own initiative and are responsible for compliance with local or national laws, as applicable. The software, technology, and other information from our Apps are further subject to United States export controls and, potentially, the import laws of your jurisdiction. No software, technology or other information from our Apps may be downloaded or otherwise exported or re-exported to any person or entity on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders or otherwise prohibited by United States export control laws. By accessing or using any software, technology or other information from our Apps in any manner whatsoever, you represent and warrant that you are not on any such list or located in, under the control of, or a national or resident of any such country.
- Security Measures. Posit Science uses industry standard technical and organizational measures to securely transfer, store, and process data, including Account Information and Training Data, as described at https://www.brainhq.com/security (“Security Measures”). The Security Measures are designed to protect the integrity of such data and guard against the unauthorized access to or use of such data. Posit Science may update the Security Measures from time to time at its sole discretion.
- General Provisions. Our failure to exercise or enforce any right or provision of these Terms of Service shall not operate as a waiver of such right or provision. If any provision in these Terms of Service is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms of Service 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. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. These Terms of Service, and any other additional terms located on particular pages of our Apps, constitute the entire agreement between you and Posit Science regarding the use of the Apps.
- Contact Information. If you have any questions about these Terms of Service, please contact us by e-mail at email@example.com or by writing to us at Posit Science Corporation, 160 Pine Street Suite 200, San Francisco, CA 94111, United States of America, in each case marking the message “Attention: Terms of Service.