Terms & Conditions

Terms & Conditions

 

BRAIN Terms of Use

BRAIN Srl (via Fortunato Zeni, 8 - 38068 Rovereto (TN) VAT: 02384350225

and its affiliates (“BRAIN,” “we” or “us”) provide performance tracking products and devices (the “BRAIN Products”) along with online and mobile software services, including, but not limited to the BRAIN website (“brainsomeness.com” or the “Site”), computer programs and mobile applications hosted by or on behalf of BRAIN ( collectively the “Services”) intended to enhance a consumer’s use of the BRAIN Products. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND BRAIN Srl  AND GOVERNS YOUR USE OF THE BRAIN PRODUCTS AND SERVICES. Subject to your acceptance of and adherence to these Terms of Use (the “Terms of Use”), BRAIN hereby grants you a limited, non-exclusive license to utilize the Products and Services as set forth herein. The terms “you” and “user” shall refer to all individuals and entities that use the BRAIN Products and access the Services.

By your affirmative actions of registering for and/or using the Services, you signify your agreement to these Terms of Use and our Privacy Policy and consent to allow BRAIN to communicate with you electronically regarding the BRAIN Products and Services.

 

Modifications to the Terms of Use

We may make changes to the Terms of Use from time to time. A link to the most current Terms of Use will be available on the Site and we will indicate the date of the “Latest Update” at the top of the Terms of Use. We may communicate changes to these Terms of Use via the Services or communicate significant changes by email. Your continued use of the Services following the posting of such changes constitutes your acceptance of the Amended Terms of Use.

 

Requirements for Use of the BRAIN Products and Services

The BRAIN Products and Services are available for individuals aged 13 years or older. If you are 13 or older but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.

Full use of the Services requires compatible BRAIN Products, Internet access, and certain software; may require periodic updates; and may be affected by the performance of these factors. The Services are not a guaranteed part of any third party product or service offering, and no purchase or obtaining of any third party product or service shall be construed to represent or guarantee you access to the Services.

Please see the section entitled “Precautions” below for recommended precautions related to your use of the BRAIN Products and the Services.

 

Agency

You represent that you are using the Services for their intended purpose. If you are registering or using the Services on behalf of a company or other organization, you represent that you have authority to bind your employer by your actions.

 

Precautions

Content found on brainsomeness.com or through the use of the Services is for informational purposes only and is not to be used or relied upon in any manner, including as medical advice. Such content is not a substitute for, and is not intended to replace, the relationship between you and your physician or other medical provider. Not all athletic or other activities described on the Services are suitable for everyone. We encourage you to consult with your own local medical professional with respect to all of your medical issues before making a decision to engage in any activity described on the Services. You should understand that when participating in any exercise or exercise program, there is the possibility of physical injury and/or death. If you think you may have a medical emergency, call your physician or 112 immediately. If you feel discomfort or pain, immediately stop the activity causing such discomfort or pain. By using the Services, you represent that you have received consent from your physician to participate in the programs, activities, workouts, and exercises described on the Services.

 

YOU EXPRESSLY AGREE THAT YOUR ACTIVITIES, PERFORMED IN CONNECTION WITH YOUR USE OF THE SERVICE (INCLUDING BUT NOT LIMITED TO MOTORCYCLING/GO-KARTING AND RELATED ACTIVITIES) CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES EVEN IF CAUSED IN WHOLE OR PART BY THE ACTION, INACTION OR NEGLIGENCE OF BRAIN OR BY THE ACTION, INACTION OR NEGLIGENCE OF OTHERS. YOU ALSO EXPRESSLY AGREE THAT BRAIN DOES NOT ASSUME RESPONSIBILITY FOR THE INSPECTION, SUPERVISION, PREPARATION, OR CONDUCT OF ANY CONTEST OR EVENT THAT UTILIZES BRAIN’S SERVICE.

 

We are not responsible for any health problems that may result from activites, training programs, products, or events you learn about through the use of the Services. If you engage in any athletic program you receive or learn about through the use of the Services you agree that you do so at your own risk and are voluntarily participating in these activities.

 

YOU EXPRESSLY AGREE TO RELEASE BRAIN, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, PARTNERS AND LICENSORS (THE “RELEASED PARTIES”) FROM ANY AND ALL LIABILITY CONNECTED WITH YOUR ATHLETIC ACTIVITIES RELATED TO YOUR USE OF THE SERVICE, AND PROMISE NOT TO SUE THE RELEASED PARTIES FOR ANY CLAIMS, ACTIONS, INJURIES, DAMAGES, OR LOSSES ASSOCIATED WITH YOUR ATHLETICSUCH ACTIVITIES. YOU ALSO AGREE THAT IN NO EVENT SHALL THE RELEASED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (a) YOUR USE OR MISUSE OF THE SERVICE, (b) [YOUR USE OR MISUSE OF EQUIPMENT OR PROGRAMS CREATED OR LICENSED BY BRAIN WHILE ENGAGED IN ATHLETIC ACTIVITIES], (c) YOUR DEALINGS WITH THIRD PARTY SERVICE PROVIDERS OR ADVERTISERS AVAILABLE THROUGH THE SERVICE, (d) ANY DELAY OR INABILITY TO USE THE SERVICE EXPERIENCED BY YOU, (e) ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES OR CONTENT OBTAINED THROUGH THE SERVICE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF BRAIN HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

 

Information from the Services

We try to provide helpful and accurate information through the use of the BRAIN Products and Services, but we make no endorsement, representation or warranty of any kind about any information, services or recommendations made available through the use of the BRAIN Products and Services. Although BRAIN takes reasonable care to ensure that any information that it posts on the Site or makes available through the use of the Services is accurate and correct and up to date when initially posted, we cannot continually verify the accuracy of such information and we make no representation or warranty, either express or implied, as to the completeness, accuracy, effectiveness or suitability of any such information. If you rely on any information provided by BRAIN, BRAIN employees, or others appearing on or contributing content to the Site or any information, data or calculations received through the use of the BRAIN Products and Services, you do so solely at your own risk.

 

Your Privacy Settings

Through the Site and the use of the Services, we enable you, if you wish, to share information with others, as this is an important motivator to achieve athletic goals. You can use the privacy settings within the Site to control which information about you is shared with others.

 

User-Generated Content

Subject to BRAIN’s adherence with the privacy settings you select , you hereby grant to BRAIN a perpetual, irrevocable, non-exclusive, worldwide, transferable, royalty-free license, with the right to sublicense, to reproduce, distribute, transmit, publicly perform, publicly display, digitally perform, modify, create derivative works of, and otherwise use and commercially exploit any text, photographs or other data and information you submit to the Site, either directly or through the use of the Services (collectively, “User Generated Content”) in any media now existing or hereafter developed, including without limitation on websites, in audio format, and in any print media format. “User Generated Content” includes but is not limited to content posted on message board posts, blogs, journals, food and recipe submissions and user comments. Subject to BRAIN’s adherence to the privacy settings you select, you hereby waive any rights of publicity and privacy with respect to the User Generated Content and any other legal or moral rights that might preclude BRAIN’s use of the User Generated Content or require your permission for BRAIN to use the User Generated Content. You agree not to assert any claim, whether based on tort, contract, or other legal theory, against BRAIN or its sublicensees relating to BRAIN’s or its sublicensees’ use of the User Generated Content in accordance with your privacy settings, and you hereby release BRAIN and its sublicensees from any such claims. You represent that your User Generated Content: (1) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights; (2) will not violate any law, statute, ordinance or regulation; (3) will not be obscene or contain child pornography; (4) will not contain any viruses, worms, time bombs or other computer programming code that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information; (5) will not violate any third party’s rights of publicity or privacy; and (6) will not be defamatory, unlawfully threatening or harassing, harmful to minors in any way, or otherwise offensive or inappropriate. You are responsible for complying with all laws applicable to your User Generated Content.

 

We reserve the right to remove any User-Generated Content, information, data, calculations, ratings, results or other content from the Site and the Services at any time. We will remove any such content if we determine, at our sole discretion, that such content is inaccurate, fraudulent or unreliable. We will have no liability to you or any third party as a result of such removal.

 

Registration and Password; Privacy Policy

You are responsible for maintaining the confidentiality of your login information and password. You shall be responsible for all uses of your login information, whether or not authorized by you. You agree to (1) immediately notify BRAIN of any unauthorized use of your password or account or any other breach of security related to the Services, and (2) ensure that you exit from your account at the end of each session. BRAIN cannot and does not assume any responsibility or liability for any information submitted by someone who has fraudulently accessed your BRAIN account or for any third party’s fraudulent use or misuse of information submitted by you.

You represent that the information that you provide about yourself as requested in the BRAIN account registration form (the “Registration Data”) is accurate and complete, and you agree to update your account information, as necessary, including providing BRAIN with your current email address, so that you may receive notifications and other account-related communications.

We may access, preserve, and disclose your Registration Data and User Generated Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the these Terms of Service; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect our (or our users or the public’s) rights, property, or personal safety.

 

Ownership of the BRAIN Products and Services

The BRAIN Products and Services, including the Site, software, design, layout, and contents, such as text, messages, data, images, graphics, photos, music, sound, videos, brochures, software, website addresses or any other information, and other material contained in the Services (collectively, the “Material” or “Materials”), are owned or licensed by BRAIN and are protected by law, including, but not limited to, Italy and international intellectual property law, as well as other state, federal and international laws and regulations. We (or the parties providing certain Materials to us for use through the Services) retain all copyright and other proprietary rights contained in the original Materials or any copies of the Materials available through the use of the Services. You may view and electronically copy the pages of the Site in the usual operation of your web browser in visiting the Site for your personal use (if you are a visitor or a registered members) only, but for no other purpose. Any other use of the Material contained on the Site, or available through the use of the Services, such as copying, distributing, selling, modifying, transmitting, reusing, re-posting or publishing is strictly prohibited, without the copyright owner’s specific written permission. Unauthorized use of Materials from the Services will not only breach these Terms, but may violate copyright and other laws. You are solely responsible for any copyright violations or other violations of intellectual property law as a result of your use of the Services and the Materials.

The logos displayed on the Site or accessed through the use of the Services are registered and unregistered trademarks of BRAIN, its grantees, and others. Use of any of BRAIN’s logos displayed on the Site or accessed through the use of the Services, or the Materials or any other content of BRAIN, without our express prior written permission is strictly prohibited. Other names and logos contained in the Services or in the Materials are trademarks and service marks of our affiliates or other third party entities, and may not be used without the permission of the trademark or service mark owner.

 

Email Rules

Some of our users will make their email addresses available if they wish to converse with other users with similar interests or goals. If you use this information, you agree not to transmit “spam” or other unwanted solicitations, or any material that is harassing, threatening, offensive, obscene, abusive, harmful, defamatory, invasive of another’s privacy, infringing of another’s intellectual property rights, or illegal. Users found using email information in this manner may have their user accounts terminated. We are not responsible for the content of email messages sent to you by our users or from third parties.

 

Copyrighted Materials

You agree that any materials posted by you shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable, or in poor taste. You also agree that you have obtained all necessary rights and licenses required to allow the posting of any content posted by you.

If you feel that any content posted on the Site or available through the use of the Services infringes your copyrights or other intellectual property rights, please notify us by sending an email to wow@brainsomeness.com.

 

User Indemnification Of BRAIN

Upon request by us, you agree to defend, indemnify and hold BRAIN and its partners, affiliates, service providers, licensors, officers, directors, employees and agents harmless from and against any and all losses, liabilities, damages and costs, including but not limited to reasonable legal and accounting fees, arising from any claims, actions or demands related to or alleged to relate to: (a) your use or misuse of the Services or any of the Materials, including any User Generated Content you post, store, reproduce, display, or distribute via the Services; (b) your violation of the Terms of Use; or (c) your violation of any intellectual property or other third party rights or any applicable law in connection with your use of the Services. We reserve the right to assume control of the defense of any third party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting and available defenses. This indemnification obligation will survive these Terms and your use of the Services.

 

User Conduct

You may not use the Services to:

a. upload, post, transmit or otherwise make available any User Generated Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

 

b. harm minors in any way;

 

c. impersonate any person or entity, including, but not limited to, a BRAIN administrator, or falsely state or otherwise misrepresent your affiliation with a person or entity;

 

d. forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Generated Content transmitted through the Services;

 

e. upload, post, transmit or otherwise make available any User Generated Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

 

f. upload, post, transmit or otherwise make available any User Generated Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party;

 

g. upload, post, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

 

h. upload, post, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

 

i. disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of the Services are able to type, or otherwise act in a manner that negatively affects other users’ ability to engage in real time exchanges;

 

j. interfere with or disrupt the Services or servers or networks used to host or provide access to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;

 

k. intentionally or unintentionally violate any applicable local, state, national or international law;

 

l. “stalk” or otherwise harass another; and/or

 

m. collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through n above.

 

BRAIN may or may not pre-screen User Generated Content, but we shall have the right (but not the obligation) in our sole discretion to pre-screen, refuse, or move any User Generated Content. Without limiting the foregoing, we and our designees shall have the right to remove any User Generated Content that violates these Terms of Service or is otherwise objectionable. You must evaluate, and bear all risks associated with, the use of any User Generated Content, including any reliance on the accuracy, completeness, or usefulness of such User Generated Content. In this regard, you acknowledge that you may not rely on any User Generated Content submitted to us.

We also have the right (but not the obligation) to suspend or terminate your access to and use of Community Pages or other parts of the Services, or delete information you have posted to the Site or made available through the use of the Services, without prior notice if you engage in any conduct that we believe, in our sole discretion: (a) violates any provision of the Terms of Use, (b) violates the Community Guidelines, (c) is offensive to other users, (d) violates the rights of BRAIN or third parties, or (e) could cause BRAIN liability. Without limiting the foregoing, upon any termination of your account or access to the Services we may delete all User Generated Content and other information related to your Community Pages. If BRAIN suspects that your Registration Data is inaccurate or incomplete, we may suspend or terminate your account.

 

Changes to the Services

BRAIN may change or discontinue, temporarily or permanently, any feature or component of the Services at any time without further notice. In addition, we may, without notice to the applicable user, terminate individual Community Pages that have been inactive for more than 30 days, but have no obligation to do so. You agree that BRAIN shall not be liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the Services.

 

Third Party Services

The Site or other components of the Services may provide links or references to websites operated by third parties. We do not monitor or investigate such websites and we are not responsible for the content, functionality, or practices of such websites. Inclusion of links to third party websites on our Services does not imply approval or endorsement of the linked website by us. If you decide to leave our Site and access these third party websites, you do so at your own risk. BRAIN suggests that you read the terms of use and privacy policies (if any) on those third party websites. You agree that BRAIN has no liability for any damage or loss of any type that is a result of your use of a third party website.

 

Content And Warranty Disclaimer

THE SERVICES ARE PROVIDED BY BRAIN  AND ITS AFFILIATES “AS IS.” NEITHER BRAIN NOR ITS PARTNERS, SUPPLIERS, OR AFFILIATES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES, ITS CONTENTS, OR ANY INFORMATION MADE AVAILABLE BY OR THROUGH THE SITE OR THE USE OF THE SERVICES. IN ADDITION, BRAIN AND ITS PARTNERS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHERMORE, BRAIN DOES NOT WARRANT THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, AVAILABLE AT ANY TIME OR FROM ANY PARTICULAR LOCATION, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER POTENTIALLY HARMFUL COMPONENTS.

 

Limitation of Liability

IN NO EVENT WILL BRAIN OR ANY OF ITS AFFILIATES, DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS, REPRESENTATIVES, ATTORNEYS, SUCCESSORS OR ASSIGNS BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) RELATED TO OR ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SERVICES OR THE MATERIALS, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT BRAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF BRAIN, ARISING FROM OR RELATING TO THE SERVICES (REGARDLESS OF THE FORM OF ACTION OR CLAIM, E.G. CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL THEORY) IS LIMITED TO $100. YOU AGREE AND ACKNOWLEDGE THAT THE FOREGOING LIMITATIONS ON LIABILITY ARE AN ESSENTIAL BASIS OF THE BARGAIN AND THAT BRAIN WOULD NOT PROVIDE, OR PERMIT YOU TO ACCESS, THE SERVICES ABSENT SUCH LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YO.

 

Governing Law:

The court of Trento shall have exclusive jurisdiction over any disputes relating to the terms and conditions mentioned above. You agree that any legal action or proceeding under or with respect to these Terms of Use or your use of the Services or any Materials or other information you obtain on or thorough the Services may be brought only in the above mentioned courts. For the purpose of any such legal action or proceeding, you hereby submit to the jurisdiction of such courts. You hereby agree not to raise and waive any objection to or any defense based upon the venue of such courts and any objection or defense based upon an inconvenient form.

 

For further information about these Terms or for inquiries of BRAIN, please e-mail us at wow@brainsomeness.com