Terms of Use

Updated: September 2015

WEB SITE AND PUBLIC SERVICES TERMS OF USE

Welcome to the Brainspace web site (the “Site”). References to “we” or “us” or “Brainspace” herein refer to Brainspace Corporation and our service providers. This Site is intended to (i) provide you with information about Brainspace and our products and services, (ii) allow access to license downloads (which are subject to separate end user license agreements), support, training and marketing materials, videos and other content, (iii) permit you to post and upload certain designated types of content and interact with us and others, (iv) provide you the opportunity to contact us directly, and (v) if you so choose, register to use the public version of our Brainspace service (“Services”).

ELIGIBILITY

By accessing this Site, you are agreeing to these Terms of Use, our Privacy Policy as well as other legal notices, terms and policies on this Site (together referred to as “Terms”), all of which are expressly incorporated herein by this reference.

Whether you are a visitor to the Site (“Visitor”) or you have registered to use the free public version of our Services (“Registrant” and “Visitor” collectively, “User”), you agree to use the Site only in accordance with the Terms. Please read all of the Terms. If you do not agree with the Terms, do not use this Site or any of its features. If you are under 18 years of age, you may use the Site only with involvement of a parent or guardian. If you choose to become a Registrant, you will be required acknowledge your consent to these Terms.

CHANGES TO THE TERMS

We may amend or terminate any Terms at any time and such amendment or termination will be effective at the time we post the revised Terms on the Site. Please visit these Terms and our Privacy Policy often. Your continued use of the Site after we have posted revised Terms signifies your acceptance of such revised Terms. You agree that your sole and exclusive remedy under these Terms is to discontinue using the Site. The Terms are the entire agreement between you and Brainspace with respect to your use of the Site. If you download or otherwise license the Services from Brainspace, the terms of your license agreement will govern with respect to your use of those Services.

REGISTRATION AND PASSWORDS

By becoming a Registrant you represent and warrant that (a) all registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. Our collection and use of any information you provide to us in connection with your Registration is subject to the Terms including, without limitation, our Privacy Policy.

If you choose to register, you will be asked to choose a user name and password. You are solely responsible for maintaining the confidentiality of this information. You are not permitted to allow anyone else to use your user name and password to log into the Site. You must notify us immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.

Brainspace respects the intellectual property of others, and requires that our Users do the same. You may not upload or post any Submission that infringes any intellectual property rights of any person or entity. We reserve the right to terminate the Registration of anyone we suspect to be an infringer. Please see our DMCA Notice for further information.

LICENSE GRANT

All Users. Brainspace hereby grants to each User a non-transferable, nonexclusive, revocable license to access and use this Site for the User’s personal, non-commercial, lawful purposes.

Registrants. Brainspace hereby grants to each Registrant a non-transferable, nonexclusive, revocable license to access and use the public version of the Services, including the right to upload and display content to the Services, offered on the Site for the Registrant’s personal, non-commercial, lawful purposes.

Users agree not to (i) use the Site for any unlawful purpose, (ii) access, use, or copy any portion of the Services, Site or their features to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with Brainspace’s products and services or to disparage Brainspace or its products or services, (iii) rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market, or transfer the Services or Site or any portion thereof or use it in any manner not expressly authorized by these Terms, or (iv) copy, reverse engineer, translate, port, modify or make derivative works of any portion of the Services or Site.

USER CONTENT

As a Registrant, we may allow you to upload data, text, information about you or your work, usernames, graphics, images, photographs, profiles, audio, video, items, and links (“Submissions”) for display on the Services and Site. Submissions will be viewable by us, the public and by other Users. We assume no responsibility or liability for any Submissions. Your use of the Site and its content is at your own risk. If you become aware of misuse of the Services or Site by other Users, please notify us at legal@brainspace.com.

We reserve the right, in our sole discretion, to reject, refuse to post or remove any Submissions, or to deny, restrict, suspend, or terminate your access to and use of all or any part of the Services or Site at any time, for any or no reason, with or without prior notice or explanation, and without liability. We assume no responsibility for monitoring the Site for inappropriate Submissions or conduct. If at any time Brainspace chooses, in its sole discretion, to monitor the Site, we nonetheless assume no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.

You are solely responsible for your use of the Services, Site and Submissions, as applicable.

Brainspace does not claim any ownership rights in Submissions. You are granting Brainspace a license solely to enable Brainspace to post, display and use the Submissions supplied to us by you so that we are not violating any rights you might have in the Submissions. You hereby grant to Brainspace a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright and publicity rights you have in the Submissions, in any media now known or not currently known. You agree that Brainspace may store, translate, or re-format the Submissions and display your Submissions on the Services and Site in any way Brainspace chooses.

Submissions must be your original work or you must have adequate rights to display and share the Submission. By providing Submissions through the Site you warrant that all aspects of the Submissions comply with these Terms and Brainspace’s published policies.

The Site may contain Content provided by Brainspace or third parties, including, without limitation, text, images and logos (“Brainspace Content”). Brainspace Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and Brainspace, Brainspace owns and retains all rights in the Brainspace Content and the features and functionality of the Site and Services. Brainspace hereby grants you a limited, revocable, non-sublicensable license to reproduce and display the Brainspace Content solely for your personal use in connection with viewing the Site and using the Services, if applicable. Except as provided within the Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Brainspace Content appearing on or through the Site or Services.

TERM AND TERMINATION

These Terms shall remain in full force and effect while you use the Site or are a Registrant. You may terminate your registration at any time, for any reason, by contacting Brainspace and notifying us of your desire to terminate the Registration. We may terminate your Registration at any time, for any or no reason, with or without prior notice or explanation, and without liability. Even after Registration is terminated, these Terms will remain in effect and you will remain bound by them except that your right to use the Site as a Registrant will terminate.

DISCLAIMERS

THE BRAINSPACE SITE AND SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” BRAINSPACE HEREBY DISCLAIMS OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE. BRAINSPACE CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SITE.

Submissions other content posted on the Site or Services may contain links to third party websites and content. Brainspace is not responsible for the content, accuracy or opinions expressed on such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by Brainspace. Inclusion of any linked website on the Site or Services does not imply approval or endorsement of the linked website by Brainspace. When you access these third party sites, you do so at your own risk. Brainspace takes no responsibility for third party advertisements or the goods or services provided by those advertisers. Brainspace assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or Registrant communication. Brainspace is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any portion of the Site, Services or combination thereof, including any injury or damage to Users or to any computer related to or resulting from participation or downloading materials in connection with the Site or Services.

LIMITATIONS OF OUR LIABILITY

IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGE, CLAIM OR LOSS INCURRED BY YOU, INCLUDING WITHOUT LIMITATION COMPENSATORY, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, IRRESPECTIVE OF WHETHER WE HAVE BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, DEFAMATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS, AS WELL AS THIRD-PARTY CLAIMS. IF THE WARRANTY EXCLUSIONS OR LIMITATIONS OF LIABILITY SET FORTH IN THIS USE AGREEMENT ARE FOR ANY REASON HELD UNENFORCEABLE OR INAPPLICABLE, YOU AGREE THAT OUR AGGREGATE LIABILITY SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100).

INDEMNIFICATION

You agree to indemnify and hold Brainspace, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, cost, expense, claim, or demand, including without limitation, reasonable attorneys’ fees, due or relating to or arising out of your use of the Site and Services, as applicable, in violation of the Terms.

NOTICE

Brainspace may give notice by means of a general notice on the Platform, electronic mail to your email address on record, or by written communication sent by first class mail or pre-paid post to your address on record. Any notice will be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Brainspace at any time by any of the following: letter sent by confirmed facsimile to Brainspace at the following fax numbers (whichever is appropriate): [FAX #]; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Brainspace at the following addresses (whichever is appropriate): [ADDRESS]. All notices sent by you will be deemed given when actually received by Brainspace.

ELECTRONIC COMMUNICATIONS

By using any portion of the Site or Services, you agree to receive notices and electronic communications from Brainspace. These communications may include information about your account or information related to the Site, Services, and features. You agree that any notice, agreements, disclosures, or other communications that we provide to you electronically satisfy any legal requirements that such communications be in writing.

DISCLOSURE AND INJUNCTIVE RELIEF

Brainspace may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Site or Services, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Brainspace’s rights or property, or the rights or property of Users, including Brainspace’s customers. Brainspace reserves the right at all times to disclose any information that Brainspace deems necessary to comply with any applicable law, regulation, legal process or governmental request. Brainspace may also disclose your information when Brainspace determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.

You acknowledge and agree that any violation by you of these Terms will constitute an unlawful and unfair business practice, and will cause irreparable harm to Brainspace, for which monetary damages would be inadequate, and you consent to Brainspace obtaining any injunctive or equitable relief that Brainspace deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies Brainspace may have at law or in equity.

GOVERNING LAW AND JURISDICTION

These Terms and any dispute arising out of or related to it or the Site or Services will be governed in all respects by the laws of the State of Texas, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Brainspace must be resolved exclusively by a state or federal court located in Dallas County, Texas. You agree to submit to the personal jurisdiction of the courts located within Dallas County, Texas for the purpose of litigating all such claims or disputes.

SEVERABILITY

You and Brainspace agree that if any portion of these Terms or of the Privacy Policy is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision will, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which will continue to be in full force and effect.

ASSIGNMENT

Brainspace may assign or delegate these Terms and the Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms or Privacy Policy without Brainspace’s prior written consent, and any unauthorized assignment and delegation by you is void and ineffective.

ENTIRE AGREEMENT

These Terms and any documents expressly incorporated by reference herein (including the Privacy Policy), contain the entire understanding of you and Brainspace, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and Brainspace with respect to the Site and Services.

NO WAIVER

The failure of Brainspace to require or enforce strict performance by you of any provision of these Terms or the Privacy Policy or failure to exercise any right under them will not be construed as a waiver or relinquishment of Brainspace’s right to assert or rely upon any such provision or right in that or any other instance.

The express waiver by Brainspace of any provision, condition, or requirement of these Terms or the Privacy Policy will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

Except as expressly and specifically set forth in this these Terms, no representations, statements, consents, waivers, or other acts or omissions by Brainspace will be deemed a modification of these Terms nor be legally binding, unless documented in physical writing, hand signed by you and a duly appointed officer of Brainspace.

FORCE MAJEURE

Brainspace will not be liable for any delay or failure to perform resulting from causes outside of its reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Brainspace’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.

CONTACT BRAINSPACE

If you have a question or concern about these Terms, please contact us by email at legal@brainspace.com or by mail at:

Brainspace Corporation

Attn: Legal

15601 Dallas Parkway, Suite 1000

Addison, TX 75001