Terms of Service
Last updated September 17, 2019
– DOWNLOADING THE MOBILE APPLICATION OR AN UPGRADE TO THE MOBILE APPLICATION OFFERED FROM TIME TO TIME; OR ACCESSING THE WEBSITE LOCATED AT WWW.INTELLADAPT.COM.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, DO NOT DOWNLOAD OR OTHERWISE USE THE APPLICATION OR WEBSITE. IF YOU ARE AN AUTHORIZED ACCOUNT USER, THE TERMS OF THIS AGREEMENT APPLY TO YOU WHERE INDICATED.
INTELLADAPT RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY THIS AGREEMENT AT ANY TIME BY POSTING A NOTICE IN THE APPLICATION OR ON THE WEBSITE, OR BY SENDING YOU A NOTICE VIA EMAIL. YOU SHALL BE RESPONSIBLE FOR REVIEWING AND BECOMING FAMILIAR WITH ANY MODIFICATIONS, WHICH SHALL BE EFFECTIVE UPON FIRST POSTING OR NOTIFICATION. YOUR USE OF THE APPLICATION OR WEBSITE FOLLOWING SUCH POSTING OR NOTIFICATION CONSTITUTES ACCEPTANCE OF THE TERMS AND CONDITIONS AS MODIFIED. YOU AGREE TO REVIEW THIS AGREEMENT REGULARLY.
You may at any time request a copy of this Agreement by emailing us at: email@example.com, Subject: User Terms and Conditions.
1. Application. IntellADAPT’s Brainwave Learner application (“Application”) is a proprietary interactive application that uses the first Brain-Computer Interface for Brainwave Adaptive Learning using EEG Headband and with the website located at www.intelladapt.com (“Website”), and that is accessible via various digital media devices, such as computers, cell phones, tablets and other handheld devices (collectively, “Devices”). IntellADAPT reserves the right to modify, suspend or discontinue the Application at any time with or without notice, including adding, changing or removing any features or functionality of the Application. Use of the Website is subject to the terms and conditions of this Agreement.
2. Registration; Website; Fees.
a. Registration Information; Authorized Account Users. By creating a Brainwave Learner account, you represent and warrant that you are at least eighteen (18) years of age. As part of the registration process, you will be prompted to create a password and to identify third parties that are authorized to access your Brainwave Learner account through the Website (each an “Authorized Account User”). You may also be invited to join one or more groups connected to the Application, such as your school or class. If you join any group, its administrator will automatically become an Authorized Account User. You may add an Authorized Account User or terminate their access to your account at any time by editing your account information, or by joining or leaving a group such Authorized Account User is an administrator of, as applicable. By providing an Authorized Account User’s information or joining a group they are an administrator of, you authorize IntellADAPT to grant such Authorized Account User access to your Brainwave Learner account information, including, without limitation, information related to your performance, as collected through your use of EEG headband provided by IntellADAPT. You shall provide true, accurate, current and complete information about yourself, or, if you are registering on behalf of a minor, about such minor, and about Authorized Account Users, as prompted by the registration email. End-User and Authorized Account Users shall keep their account passwords secure and shall notify IntellADAPT immediately of any breach of security or unauthorized use of their accounts. IntellADAPT will not be liable for losses caused by any unauthorized use of your account. If you register on behalf of a minor, you certify to IntellADAPT that you are such minor’s legal guardian; as used herein, “End-User” and “you” shall refer to you and such minor.
b. Website Restrictions. End-User and Authorized Account Users agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Website in a manner that sends more request messages to IntellADAPT’s servers in a given period of time than a single human can reasonably produce in the same period by using a conventional web browser. End-User and Authorized Account Users agree not to collect or harvest any information, including account names and performance data, from the Website, nor to use the communication systems provided by the Website for any unauthorized commercial solicitation purposes.
c. In-App Purchases. IntellADAPT may make certain products and/or services available to users of the Application in consideration of payment of a subscription fee or other fees (“In-App Purchases”). You may make In-App Purchases through the Apple App Store, Google Play or other mobile or web application platforms or storefronts authorized by IntellADAPT (each, a “Third Party Store”). Once you have made an In-App Purchase, you authorize IntellADAPT to charge your chosen payment method. In the event of a conflict between a Third Party Store’s terms and conditions and this Agreement, the terms and conditions of the Third Party Store or service provider shall govern and control. If IntellADAPT terminates your registration or membership because of your breach of the Agreement, you will not be entitled to a refund of any unused portion of any fees, except to the extent required under applicable law, IntellADAPT reserves the right to change its fees and access policies from time to time, in its sole discretion. IntellADAPT has a no charge-back, no refund policy.
3. Grant of Rights.
a. Granted Rights. Subject to the terms and conditions of this Agreement, IntellADAPT hereby grants to End-User a limited nonexclusive, nontransferable, non-assignable, non-sublicensable right to use the Application and Website solely for End-User’s personal purposes and solely for their intended purpose in connection with use of Brainwave Adaptive Learning Platform, as permitted by the usage rules set forth in the relevant Third Party Store’s Terms of Service. Subject to the terms and conditions of this Agreement, IntellADAPT hereby grants to Authorized Account Users a limited nonexclusive, nontransferable, non-assignable, non-sublicensable right to access via the Website, the account(s) of End-User(s) that have authorized such access.
b. Reserved Rights. The Application involves valuable proprietary rights of IntellADAPT. No title to or ownership of the Application, Website or Brainwave Adaptive Learning Platform or any proprietary rights associated therewith is transferred by this Agreement to End-User or Authorized Account Users. All rights not expressly granted in this Agreement are reserved by IntellADAPT.
c. Restrictions. End-User and Authorized Account Users may not license, sublicense, sell, resell, rent, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application, the Website, or any portion or component thereof, or any rights granted in this Agreement, except as expressly permitted herein and subject to the terms set forth in this Agreement. End-User may not reverse engineer, disassemble, or decompile the Application or otherwise attempt to discover the source code of the Application. End-User and Authorized Account Users may not: (i) remove any copyright, trademark or other proprietary notices from the Application or Website, or any component thereof; (ii) rent or lease the Application or permit access to or use of the Application or Website by anyone other than End-User; or (iv) create modifications to or derivative works of the Application or Website or any component thereof.
4. Obligations of End-User and Authorized Account Users
a. Systems. End-User and Authorized Account Users are solely responsible for providing and maintaining, at their own expense, all Devices, equipment, facilities and services necessary to access and use the Application and Website, including, without limitation, computer hardware and software, modems, telephone service and Internet access. In addition, End-User acknowledges that use of the Application requires a separate purchase of a Brainwave Adaptive Learning Platform – compatible EEG headband.
b. Conduct. End-User and Authorized Account Users agree to use the Application and Website only for purposes that are permitted by this Agreement and any applicable laws, rules and regulations. End-User agrees not to engage in any activity that interferes with or disrupts the Application (or the servers or networks connected to the Application). End-User represents and warrants that (i) he/she is 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) he/she is not listed on any U.S. Government list of prohibited or restricted parties. Authorized Account Users shall keep confidential any End-User information accessed through the Website and shall not disclose such information to any third party.
c. Indemnity. End-User and Authorized Account Users shall defend, indemnify, and hold IntellADAPT, its affiliates, officers, employees and agents harmless from and against any third-party claims, actions, proceedings, damages, costs, liabilities, losses and expenses (including, without limitation, reasonable attorney fees) arising out of or related to: (i) misuse of the Application or Website; or (ii) any violation of this Agreement or applicable laws, rules or regulations.
5. Intellectual Property Rights. As between the parties, IntellADAPT owns all rights, title and interest in and to the Application and Website, and all proprietary process and technology relating thereto, including, without limitation, the Brainwave Adaptive Learning Platform (collectively, the “Technology”) and all intellectual property rights therein, including, without limitation, all modifications, updates and derivative works relating to the Application or the Technology. All suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by End-User or Authorized Account Users to IntellADAPT related to the Application, Website, or any of IntellADAPT’s other products or services (collectively referred to as “Contributions”), shall be owned by IntellADAPT; End-User and Authorized Account Users shall not be entitled to any compensation in connection therewith and hereby assign to IntellADAPT all intellectual property rights and other rights in or to any and all Contributions. The IntellADAPT name and logo, and any other trademarks or service marks used by IntellADAPT in connection with the Application. are trademarks of IntellADAPT or its licensors, and End-User and Authorized Account Users shall have no right or license thereto.
6. Termination. IntellADAPT may terminate this Agreement immediately if End-User (or Authorized Account User, as applicable) breaches any provision of this Agreement. In addition, End-User may terminate an Authorized Account User’s access to the End-User’s account at any time. Upon termination, End-User shall cease all use of the Application and Website; Authorized Account Users shall cease all use of the Website. Sections 3.b, 3.c, 4.b, 4.c, and 5 through 10 shall survive termination or expiration of this Agreement for any reason.
7. Warranty Disclaimer. THE APPLICATION AND WEBSITE ARE PROVIDED “AS IS.” EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, NEITHER INTELLADAPT NOR ITS LICENSORS MAKE ANY WARRANTY REGARDING THE APPLICATION, WEBSITE, OR ANY OTHER ITEMS OR SERVICES PROVIDED IN CONNECTION THEREWITH, INCLUDING, WITHOUT LIMITATION REGARDING THE RELIABILITY, TIMELINESS, AVAILABILITY, SECURITY, COMPATIBILITY, ACCURACY OR COMPLETENESS OF THE APPLICATION. INTELLADAPT AND ITS LICENSORS HEREBY DISCLAIM ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, EXCEPT FOR BODILY INJURY, NEITHER INTELLADAPT NOR ITS LICENSORS SHALL BE LIABLE TO END-USER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF INTELLADAPT HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL INTELLADAPT’S OR ANY OF ITS LICENSORS’ AGGREGATE LIABILITY TO END-USER RELATED TO THE SUBJECT MATTER HEREOF EXCEED THE AMOUNTS ACTUALLY RECEIVED BY INTELLADAPT FROM END-USER FOR THE APPLICATION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO END-USER OR AUTHORIZED ACCOUNT USERS.
9. Arbitration. The parties agree that any and all disputes or controversies of any nature between them arising at any time shall be determined by binding arbitration in accordance with the Commercial Arbitration Rules of the AAA before a single neutral arbitrator (“Arbitrator”) in the State of Massachusetts. The Arbitrator shall be mutually agreed upon by the parties; if the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed by the AAA. The Arbitrator shall determine how all expenses relating to the arbitration shall be paid, including without limitation, the respective expenses of each party, the fees of the arbitrator and the administrative fee of the American Arbitration Association. Any final outcome of such arbitration shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to any court of competent jurisdiction located in the State of Massachusetts, which may be made ex parte, for confirmation and enforcement of the award. In addition, either party may seek equitable, non-monetary relief at any time in any court of competent jurisdiction located in the State of Massachusetts without thereby waiving its right to arbitration of any dispute or controversy. All proceedings shall, to the extent permitted by law, be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
10. Miscellaneous. This Agreement shall be governed by the laws of the State of Massachusetts, without regard to conflicts of laws provisions thereof. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement and the Brainwave Adaptive Learning Platform License constitute the entire agreement and understanding between IntellADAPT and End-User with respect to the subject matter hereof and supersede any prior or contemporaneous oral or written negotiations, understandings or agreements. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by IntellADAPT. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, when sent by confirmed email or email, or three days after being sent by prepaid certified or registered U.S. mail. End-User and Authorized Account Users may not assign this Agreement nor any portion thereof to any third party; any purported assignment shall be void and without effect. In any action to enforce rights or obligations under this Agreement, the prevailing party shall be entitled to recover costs and reasonable attorney fees. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST INTELLADAPT OR ITS LICENSORS.
Any questions, complaints or claims with respect to the Application should be directed to support@IntellADAPT.com
ADDITIONAL TERMS THAT ARE APPLICABLE TO USERS OF THE APPLICATION AS OFFERED BY THIRD PARTIES AND ARE AN INTEGRAL PART OF THE ABOVE AGREEMENT:
The following additional terms and conditions apply to you if you download the Application from a Third Party Store. To the extent that the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section, the more restrictive or conflicting terms and conditions in this Section will apply, but solely with respect to the Application and the Third Party Store. You acknowledge and agree that:
a. These Terms are concluded solely between you and IntellADAPT and not with the providers of the Third Party Store, and IntellADAPT is solely responsible for the Application and the content thereof. To the extent that this Agreement provides for usage rules for the Application which are less restrictive or in conflict with the applicable terms of service of the Third Party Store from which you obtain the Application, the more restrictive or conflicting term of the Third Party Store will take precedence and will apply.
b. The Third Party Store provider has no obligation whatsoever to provide any maintenance or support services with respect to the Application. The Third Party Store provider will have no warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of IntellADAPT.
c. The Third Party Store provider and its subsidiaries are third party beneficiaries of this Agreement and shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
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