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End User License Agreement for BrainTrain Software Products
PLEASE READ THIS LICENSING AGREEMENT CAREFULLY BEFORE PROCEEDING. IN ORDER TO USE THIS SOFTWARE (UNLESS THE PURCHASER IS A GOVERNMENTAL ENTITY) THE INDIVIDUAL OR BUSINESS PURCHASER MUST AGREE TO ALL OF THE TERMS OF THIS LICENSING AGREEMENT. INSTALLING THE SOFTWARE BY THE PURCHASER ONTO THE PURCHASER’S COMPUTER CONSTITUTES FULL AGREEMENT WITH THE TERMS OF THIS LICENSE AS SPECIFIED BELOW. THIS IS A LEGAL, BINDING AND ENFORCEABLE CONTRACT BETWEEN THE PURCHASER AND BRAINTRAIN, INC. If when installing this software for the first time or upgrading a previous version of the software, the purchaser and/or any other person allowed by the purchaser to install software on their computer checks the box agreeing to these license terms and/or loads this software, the purchaser acknowledges his or her full agreement with all of the terms and conditions of this licensing and use agreement for this BrainTrain software and any previous BrainTrain software purchased. If the purchaser does not agree to all of the terms and conditions stated below, then the purchaser should not check the box agreeing to the licensing terms and not load the software. The above requirements for use and installation do not apply to all purchasers who represent Governmental entities. For purchases by Government entities the relevant state, local and/or federal laws and regulations apply to the fullest extent possible in accordance with these licensing agreement terms and any terms that are not in accordance with these laws are hereby excluded and stricken from this licensing agreement.
1. License. The installation by any purchaser of this product on any computer constitutes the purchaser’s acceptance of all terms of this license agreement specified below. The application, demonstration, system and other software accompanying this License, whether on disk, in read only memory, or on any other media (the 'Software') and related documentation are licensed to the purchaser by BrainTrain, Inc. for a specified period of time that begins on the date of purchase (“Term Software License”). The software may also be licensed for an unlimited period of time (“Perpetual Software License”). The purchaser owns the media on which the Software is recorded, but BrainTrain, Inc. and/or BrainTrain, Inc.'s Licensors retain title to the Software and related documentation. This License allows the purchaser to use the Software on one computer at a time, unless a multi-use license was purchased. The Software’s use is permissible only during the time period that it is licensed and it will not function fully after the Term Software License has expired. After the Term Software License has expired, the customer’s use of the program will be limited to accessing their own client-related program data. In the case of breach of this software license, the Licensee agrees to pay all damages, reasonable attorney fees and related expenses incurred by BrainTrain, Inc. in the enforcement of this agreement. Your license rights in the Software are non-transferable. Any license fees paid are non-refundable and all sales of this software license are final, unless specifically stated in writing by BrainTrain. If the purchaser has purchased a home version of any BrainTrain product, this software is licensed solely for non-commercial, personal use and its use in any commercial business or any activity other than personal use is strictly prohibited, whether or not a fee for its use is charged. Professional versions of BrainTrain products are licensed for use in either commercial business activities or for personal use. If the purchaser has purchased a research and/or educational version of any BrainTrain product, this is licensed solely for non-commercial research and/or educational use and its use in any commercial business or activity other than for research and/or educational purposes is strictly prohibited.
2. Restrictions. The Software contains copyrighted material, trade secrets and other proprietary material and the purchaser may not decompile, reverse engineer, disassemble or otherwise reduce the Software to a human perceivable form. The purchaser may not modify, network, rent, lease, loan, distribute or create derivative works based upon the Software in whole or in part without express written permission from BrainTrain, Inc. The purchaser may not electronically transmit the Software from one computer to another or over a network.
3. Termination. This License is effective until terminated. The purchaser may terminate this License at any time by destroying the Software and related documentation and all copies thereof. This License will terminate immediately without notice from BrainTrain, Inc. if the purchaser fails to comply with any provision of this License. The purchaser also agrees that BrainTrain, Inc. has the right to terminate the license at any time in the event that the purchaser misuses the product. Upon termination the purchaser must destroy the Software and related documentation and all copies thereof.
4. Export Law Assurances. The purchaser agrees and certifies that neither the Software nor any other technical data or hardware devices received from BrainTrain, Inc., nor the direct product thereof, will be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. This agreement includes complying with all export and re-export restrictions and regulations of the Department of Commerce or other United States agency or authority, and not to transfer, or authorize the transfer, of the Products to a prohibited country or otherwise in violation of any such restrictions or regulations.
5. Government End Users. If the purchaser is acquiring the Software on behalf of any unit or agency of the United States Government, then the terms of this licensing agreement are acknowledged by BrainTrain, Inc. to comply with the FAR clause at 12.212(a) and to be consistent with Federal law as specified in the FAR regulations. If the purchaser is a Government entity and BrainTrain, Inc. believes that the purchaser is in violation of any of the provisions of this agreement, then BrainTrain, Inc. will submit a claim with the contracting officer and seek remedy in accordance with the FAR or other relevant governmental provisions governing such disputes. BrainTrain, Inc. and any purchaser who is a government agency agree that all disputes shall be resolved in accordance with FAR 52.233.1 and FAR 12.302(b) or other applicable governmental regulations pertaining to contractual disputes.
6. Limited Warranty on Media and Hardware. BrainTrain, Inc. warrants the media on which the Software is recorded to be free from defects in materials and workmanship under normal use for a period of 90 days from the date of purchase as evidenced by a copy of the receipt. BrainTrain, Inc.'s entire liability and your exclusive remedy will be replacement of the media and/or hardware that is returned to BrainTrain, Inc. or a BrainTrain, Inc. authorized representative with a copy of the receipt. BrainTrain, Inc. will have no responsibility to replace media or hardware damaged by accident, neglect, misuse, poor telephone or electrical circuits, failure of electric power, air conditioning, humidity control, equipment failure, or causes other than ordinary use, nor does it apply to causes beyond BrainTrain’s control. This limited warranty does not cover cable harnesses, batteries, lead wires, adaptors, sensors, electrodes or any other consumables sold by BrainTrain. In no event will BrainTrain be liable to the purchaser for any damages, including any lost profits, lost savings, loss of business information, incidental or consequential damages or any other pecuniary loss arising out of the use or inability to use the product even if Vendor or an authorized distributor has been advised of the possibility of such damages, or any claim by any other party (including by those relying on the data or information from use of the product). ANY IMPLIED WARRANTIES ON THE MEDIA OR HARDWARE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO 90 DAYS FROM THE DATE OF DELIVERY. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
7. Limited Purpose of Software. BrainTrain, Inc.'s software products are for educational and recreational purposes only. They are not intended to replace any medical treatment or professional advice for any emotional or psychological problems. The products are designed for cognitive skill development, mental fitness and/or educational purposes, and no medical claims, either expressed or implied, are made for them. These products are not intended to be a substitute for consultation with a health care provider or for appropriate medical treatment for any emotional or psychological problems. They are not a cure for ADD, ADHD, LD or any other cognitive impairment. Many of these products are best used within a comprehensive training program after an evaluation by a qualified professional. They are not medical devices, and should not be used for the relief of any medical condition. The scientific research completed using these programs has shown significant clinical improvements in cognitive functioning for a number of people; however, specific or general benefits for any one individual using these software tools can never be guaranteed. These products are not approved for any purpose by the Food and Drug Administration. The SmartMind Neurofeedback System is classified as a Class II 510(k) exempt medical device by the FDA. It is intended to be used by professionals for relaxation training and stress management. You agree not to use this product in any environment as a training method or component involving life support, operation of a motor vehicle or machinery, safety devices or systems, military or nuclear applications, or in any other application in which the potential failure or use of the software or any hardware devices used with it in any way could create a situation where personal injury or death may occur.
8. Warranty Disclaimer. THE PURCHASER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF ANY BRAINTRAIN PRODUCT IS AT THE PURCHASER’S SOLE RISK. THE SOFTWARE AND RELATED DOCUMENTATION ARE PROVIDED 'AS IS' AND WITHOUT WARRANTY OF ANY KIND AND BRAINTRAIN, INC. AND BRAINTRAIN, INC.'S LICENSOR(S) (FOR THE PURPOSES OF PROVISIONS 6, 7 AND 8, BRAINTRAIN, INC. AND BRAINTRAIN, INC.'S LICENSOR(S) SHALL BE COLLECTIVELY REFERRED TO AS 'BRAINTRAIN, INC.') EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BRAINTRAIN DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET THE PURCHASER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, BRAINTRAIN DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BRAINTRAIN OR A BRAINTRAIN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT BRAINTRAIN OR A BRAINTRAIN AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME STATES OR GOVERNMENT ENTITIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. Limitation of Liability. UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE SHALL BRAINTRAIN BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE THE SOFTWARE OR RELATED DOCUMENTATION, EVEN IF BRAINTRAIN OR A BRAINTRAIN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR GOVERNMENT ENTITIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO THE PURCHASER. NO ACTION MAY BE BROUGHT OR ARBITRATION DEMANDED UNDER THIS AGREEMENT AT ANY TIME MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION FOR ARBITRATION AROSE. IN NO EVENT SHALL BRAINTRAIN, INC.'S TOTAL LIABILITY TO THE PURCHASER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) EXCEED THE AMOUNT PAID BY THE PURCHASER FOR THE SOFTWARE.
10. Controlling Law and Severability. This License shall be governed by and construed in accordance with the laws of the United States and the State of Virginia, as applied to agreements entered into and to be performed entirely within Virginia, unless the purchaser is a Government entity in which case the current controlling law will be in accordance with the regulations and laws of that Government entity.
11. Jurisdiction. In the event of any legal action relating to this License Agreement that is not in accordance with the terms of Arbitration specified below, the purchaser consents to the exercise of jurisdiction over it by a state or federal court in Chesterfield County, Virginia and further agrees that such court shall have exclusive jurisdiction over any such action, unless the purchaser is a Government entity in which case the current controlling law will be in accordance with the regulations and laws of that Government entity. If for any reason the court of jurisdiction finds any provision of this License, or portion thereof, to be unenforceable, that provision of the License shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this License shall continue in full force and effect.
12. Arbitration. BrainTrain, Inc. and the purchaser agree that in the event of any dispute arising between the parties with respect to this License Agreement, such dispute shall be settled by binding arbitration to be conducted in Chesterfield County, Virginia in accordance with the rules of the Judicial Arbitration and Mediation Service ('JAMS') applying the laws of Virginia, unless the purchaser is a Government entity in which case the current controlling law will be in accordance with the regulations and laws of that Government entity. BrainTrain, Inc. and the purchaser agree that such arbitration shall be conducted by one or more retired judges who are experienced in dispute resolution, that pre-arbitration discovery shall be limited to the greatest extent provided by the rules of JAMS, that the arbitration shall not be conducted as a class action, that the arbitration award shall not include factual findings or conclusions of law and that no punitive damages shall be awarded. BrainTrain, Inc. and the purchaser understand that any party's right to appeal or to seek modification of rulings in arbitration is severely limited. The costs of the arbitration shall be borne equally by both parties. Any award rendered by the arbitrators shall be final and binding and judgment may be entered on it in any court of competent jurisdiction in Chesterfield County, Virginia. Each party agrees to pay their own legal and other costs related to such a dispute. All arbitration 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.
13. Technical Support. For Perpetual Software Licenses, BrainTrain, Inc. will provide technical support for the Software at no charge for ninety (90) days after the initial date of purchase. After this 90 day period has expired, the purchaser will be required to pay a yearly fee for any technical support needed. This yearly technical support fee for Perpetual Software Licenses is subject to change without notice, except for Government entities. BrainTrain’s obligation for providing technical support and updates will only continue for the time period that the current support has been purchased. The renewal of any technical support plan, including updates, will be at BrainTrain’s sole discretion. For Term Software Licenses, BrainTrain, Inc. will provide technical support for the Software at no charge for the period of the license. After the Term Software License has expired, purchasers may be able to procure a new software license and continue to receive technical support and updates at the sole discretion of BrainTrain, Inc. Technical support includes any and all support or technical services provided by BrainTrain, Inc., including but not limited to resolving conflicts with a computer's operating system and its components, helping to correct for equipment failures such as hard drive or interface card malfunctioning, re-registration of software on a new or rebuilt computer, and transferring the license to another computer. All hardware is warrantied for a period of ninety (90) days from the date of purchase. Misuse or abuse of the hardware is not covered during this warranty period. If a problem occurs after this ninety (90) day period, there is a fee associated with the repair or replacement of any part of the hardware.
14. Complete Agreement. This License constitutes the entire agreement between the parties with respect to the use of the Software and related documentation, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by a duly authorized representative of BrainTrain, Inc.
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