TERMS OF SERVICE AGREEMENT

 

Effective 2010-06-20

 

Welcome to our website, www.BrainMagic.com, which is owned and developed by LWN BRAINMAGIC INC., as a British Columbia, Canada Corporation. By using our site, you are agreeing to comply with and be bound by the following Terms of Service. Please review the following terms carefully. If you do not agree to these terms you should not use this Web site. Note that “us” or “we” or “our” refers to LWN BrainMagic Inc., the owner of the Web site. The terms “you” or “Subscriber” refer to the user or viewer of our Web site.

 

Acceptance of Agreement

 

You agree to the Terms of Service outlined in this Terms of Service Agreement (“Agreement”) with respect to our site (the “Site”). This Agreement constitutes the entire and only agreement between us and you, and supersedes all prior and contemporaneous agreements, representations, warranties and understandings with respect to the Site, the content, products or Services provided by or through the Site, and the subject matter of this Agreement. This Agreement may be amended at any time by us from time to time without specific notice to you. The latest Agreement will be posted on the Site and you should review this Agreement before using the Site.

 

Copyright

 

The content, organization, graphics, compilation, design, magnetic translation, digital conversion and other matters related to the Site are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights. The copying, redistribution, use or publication by you of any such matters or any part of the Site except as allowed by Section 4 below is strictly prohibited. You do acquire ownership rights to any content, document or other materials viewed though the Site. The posting of information or materials on the Site does not constitute a waiver of any right in such information and materials. Some of the material on the Site may be copyrighted material of third parties.

 

Service marks

 

“www.BrainMagic.com” BrainMagic TM and others are our Service marks or registered Service marks or trademarks. Other product and company names mentioned on the Site may be trademarks of their respective owners.

 

Limited License; Permitted Uses

 

In consideration for your agreement to the Terms of Service, you are granted a revocable, non-exclusive, non-transferable, non-sublicensable license (a) to access and use the Site strictly in accordance with this Agreement; (b) to use the Site solely for internal, personal, non-commercial purposes; and (c) to print out discrete information for the Site solely for internal, personal and non-commercial purposes and provided that you maintain all copyright and other policies contained therein. No printout or electronic version of the Site or its contents may be usedd by you in any litigation or arbitration matter whatsoever under any circumstances.

 

Restrictions and Prohibitions on Use

 

Your license for access and use of the Site and any information, materials or documents (collectively defined as “Content and Materials”) therein are subject to the following restrictions and prohibitions on use: You may not (a) , print ( except for the express limited purpose permitted by Section 4 above)  republish, display, distribute, transmit, sell, rent, lease, loan, or otherwise make available in any form or by any means all or any portion of the Site or any Content and Materials retrieved therefrom; (b) use the Site or any materials obtained from the Site to develop, as a component of, any information, storage and retrieval system, database, information base, or similar resource ( in any media now existing or hereafter developed), that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription or any other commercial distribution system.

You are on notice that all materials displayed or performed on the Site (including, but not limited to text, graphics, games, applications, news articles, photographs, images, illustrations, audio clips and video clips, collectively, the “Content”) may constitute our intellectual property and accordingly would be protected by copyright and/or trademark, pursuant to British Columbia laws, international conventions, and other laws. The Site and the Content may only be usedd in accordance with the Terms of Service. You agree not to crack or attempt to crack the Site’s flash (.SWF) files. You understand that all patterns, logarithms, algorithms, and data in the Site’s flash files, and in the servers driving the flash files, are our proprietary information and constitute “trade secret”.

Registration.

You are required to provide us with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms of Service, which may result in immediate termination of your Account(s). Your membership allows you access to certain Content and Services on the Site.

Subscriber may not (i) select or use as a Brain Magic user ID a name of another person with the intent to impersonate that person or (ii) use as a Brain Magic user ID a name subject to any rights of a person other than Subscriber without appropriate authorization. We reserves the right to refuse registration of, or cancel a user ID in our discretion. Also, Subscriber shall be solely responsible for maintaining the confidentiality of passwords to Subscriber's Account(s). If you violate the Terms of Service, we may terminate any and all accounts you have established at the Site (your “Account(s)”). You acknowledge that we are not required to provide you notice before we so terminate your Account(s).

You are solely responsible for all activity on your Account(s) and for the security of your computer systems. You agree to indemnify and hold the us harmless for any improper or illegal use of your Account(s). including but not limited to illegal or improper use by someone who has received permission to use your Account(s). Your Account(s) is / are subject to termination if you or anyone using your Account(s) violates the Terms of Service.

Consent to receive E-Mail.

If you register to use the Site and Services, you hereby consent to receive periodic newsletters and other types of email communications from us, including customer Service issues and new product offers. You may choose to opt out of certain newsletter and announcement email correspondence; however, we reserve the right to email you at any time regarding issues related to your account and your use of the Site and Service.

Subscription Fees, Payment and Refunds.

Some of the Services require payment of fees. Subscriber shall pay all applicable fees, as described on the Site in connection with such Services selected by Subscriber. You may cancel your subscription at any time by accessing the “Your Account” link on the Site. However, we are not obligated to refund any fees that have accrued to your Account(s) before the cancellation. Additionally, we will not prorate fees for any subscription.

Fees may be based on one-time or subscription payments as more fully described on the Site. You may pay the subscription fees with a valid credit card that is under your own name or that you are authorized to use for such purpose. Recurring subscription fees paid by credit card will automatically renew, unless you affirmatively cancel your subscription prior to the beginning of the next applicable period for which the subscription corresponds. For each month that your subscription is active, you acknowledge and agree that we are authorized to charge the same credit card for the subscription fee. You agree to promptly notify us of any changes to your credit card while any subscriptions remain outstanding.

You are responsible for all applicable fees and charges incurred, including applicable taxes, and all subscriptions made by you or by anyone that has used your Account(s), including your family or friends.

If you elect to subscribe or become a member to, or purchase fee-based content, games, products and/or Services and transmit to us a purchase request, you warrant that (i) you are the age of majority in your jurisdiction, or, if you are a minor, your Parent has submitted all purchase information and read and accepted this Agreement on your behalf, (ii) your use of the particular credit card or other accepted method of payment is authorized, (iii) all information that you submit is true and accurate (including, without limitation, your credit card number and expiration date), and (iv) you agree to pay all fees you incur, including all recurring subscription fees unless and until you affirmatively terminate your game, content, product or Service account in accordance with the terms for such game, content, product or Service. A username and password supplied to you in connection with fee-based content, games, products and/or Services that you purchase is personal to you, and you may not transfer or make available your name and password to others. Any distribution by you of such username and password may result in suspension, termination or cancellation of your access to such fee-based materials without refund and in additional charges based on unauthorized use.

You understand that online games, exercises and system specifications necessary to play those games or do those exercises, may continuously evolve over time. You also acknowledge and agree that we and out third party providers do not ensure continuous or error-free access or availability of any game content, feature, Service or server and may change, modify, disable, suspend or remove any such content, feature, game-play, Service or server in their sole discretion.

We may also terminate or suspend any and all Services and access to the Site immediately, without prior notice or liability, if Subscriber breaches any of the terms or conditions of the Terms of Service. Any fees paid or accrued hereunder are non-refundable

For Parents

Please note that all persons under the age of majority in their jurisdiction are required to have a parent or guardian read and accept this Agreement and our Privacy Policy on their behalf. Parents are encouraged to spend time online with their children under the age of 18 and to become familiar with the types of content available on the Site and the Internet in general. Parents should regularly oversee their childrens’ use of e-mail and other online communications and transactional features. Control tools are available from online Services and software manufacturers that can help provide a safe online environment for kids. There is some good information online about software that protects your kids. Try http://www.ftc.gov /bcp/edu/pubs/consumer/tech/tec08.shtm and at http://kids.getnetwise.org/tools/

 

Access to the Services

Subject to these Terms of Service, we may offer to provide certain Services as are selected by Subscriber through the process provided on the Site, solely for Subscriber’s own personal use, and not for the use or benefit of any third party. Services shall include, but not be limited to, any Services we perform for Subscriber, as well as the offering of any content on the Site. We may change, suspend or discontinue the Services at any time, including the availability of any feature, database, or content. We may also impose limits on certain features and Services or restrict Subscriber’s access to parts or all of the Services without notice or liability.

Subscriber shall be responsible for obtaining and maintaining any equipment or ancillary Services needed to connect to, access the Site or otherwise use the Services, including, without limitation, modems, hardware, software, internet Service and long distance or local telephone Service. Subscriber shall be solely responsible for ensuring that such equipment or ancillary Services are compatible with the Services.

Effect of Termination

Upon termination of the Subscriber's Account(s), Subscriber’s right to use the Services, access the Site, and any Content as provided in the Terms of Service will immediately cease. All provisions of the Terms of Service, which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, medical disclaimer, limitations of liability and miscellaneous.

Links to Other Websites

This Site may form time to time contains links to other websites. We do not endorse these websites, are not responsible for them, and do not control the availability, accuracy, reliability, content, associated links, privacy and security practices, resources, or Services associated with a third party site. You agree that we shall not be liable for any loss or damage of any sort associated with your use of third party content. Links and access to these sites are provided for your convenience only and should you choose to access such other sites you acknowledge that you do so voluntarily and assume all risk.

Restrictions

Subscriber is solely responsible for all of its activity in connection with the Services and accessing the Site. Any fraudulent, abusive, illegal or otherwise inappropriate activity are grounds for termination of Subscriber’s right to Services or to access the Site. Subscriber may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other Subscriber.

Warranty Disclaimer

TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE AND OUR PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS AND/OR EMPLOYEES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. USER AGREES THAT USE OF THE SITE AND SERVICES ARE AT HIS/HER/ITS OWN SOLE RISK AND THAT THE SERVICES, CONTENT, SITE AND ANY SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE  MAINTAIN THE SITE ON A COMMERCIALLY REASONABLE BASIS AND DO NOT GUARANTEE THAT YOU WILL HAVE ACCESS TO THE SITE. THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. YOU AGREE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD US RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF (OR LOSS OF ACCESS TO OR LOSS OF SERVICE OF) THE SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGE TO ANY OF YOUR COMPUTERS OR DATA.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE NO RIGHT, BASED IN PROPERTY OR OTHERWISE, TO ANY DATA CREATED THROUGH OR GENERATED BY YOUR ACCESS TO OR USE OF THE SITE AND/OR SERVICES. YOU ACKNOWLEDGE THERE IS A RISK OF DATA LOSS, INCLUDING CATASTROPHIC DISK FAILURE WHICH COULD RESULT IN A LOSS OF ALL DATA. YOU AGREE THAT YOU WILL NOT HOLD US RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM SUCH LOSS.

Lmitation of Liability

IN NO EVENT SHALL WE OR OUR PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS AND/OR EMPLOYEES BE LIABLE WITH RESPECT TO THE SITE OR THE SERVICES FOR (I) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY SUBSCRIBER THEREFOR; (II) LOST PROFITS, LOST DATA, OR FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION GOOD FAITH AND REASONABLE CARE ARISING OUT OF YOUR ACCESS TO OR USE OF THE SITE; OR (III) ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER. WE DO NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED THROUGH THE SITE AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. YOU UNDERSTAND THAT THE SITE AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.

Irreparable Injury

You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third party rights by you would cause irreparable injury to us and would therefore entitle us to injunctive relief without any additional showing of irreparable injury or harm.

Indemnity

Subscriber will indemnify and hold us, our parents, subsidiaries, affiliates, officers and/or employees, harmless, including by paying costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of Subscriber’s access to the Site, use of the Services, the violation of the Terms of Service by Subscriber, or the infringement by Subscriber, or any third party using the Subscriber's Account(s), of any intellectual property or other right of any person or entity.

Medical Disclaimer

Our products and Services and other Content available on the Site are not an attempt to practice medicine or to provide specific medical advice. Use of this site does not establish a doctor-patient relationship. Any health information and links on the Site, whether provided by us or by contract from outside providers, is provided simply for your convenience. Additionally, the Site may contain links to external websites. Please consult with your physician.

Epilepsy Warning

Please note that certain people are susceptible to epileptic seizures or loss of consciousness when exposed to certain flashing lights or light patterns in everyday life. Such people may have a seizure while watching certain monitor images or playing certain video games. This may happen even if the person has no medical history of epilepsy or has never had any epileptic seizures. If you or anyone in your family has ever had symptoms related to epilepsy (seizures or loss of consciousness) when exposed to flashing lights, consult your doctor prior to playing. We advise that parents should monitor the use of video games and exercises by their children. If you or your child experience any of the following symptoms: dizziness, blurred vision, eye or muscle twitches, loss of consciousness, disorientation, any involuntary movement or convulsion, while playing a video game, immediately discontinue use of the video game and consult your doctor.

Please also note that when using a video game or online exercise you should take certain standard health and safety precautions, including avoiding playing the game or doing the exercise when tired, taking 10 to 15 minute breaks every hour, sitting a reasonable distance from the screen, and playing the game in a well-lit environment.

 

Use of the "Success Stories"

The site has a module “Success Stories”.
By posting a message, uploading a file, or engaging in any other form of communication there or elsewhere on the Site, you are granting us a perpetual, royalty-free and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, sublicense, create derivative works from, transfer, and sell any such plan, opportunity, messages, files or communications. You additionally agree to abide by the following rules in connection with your use of the blog area of the Site:

• not to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others.
• not to impersonate any person or entity, including, for example, our employee or officer, a Site leader, or falsely state or otherwise misrepresent your affiliation with a person or entity.
• not to post messages that contain material that is inappropriate, profane, defamatory, infringing, obscene, or indecent. This includes any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party. You agree to give attribution to others when you quote or paraphrase materials owned by others.
• not to upload files, or cause Subscribers to upload files, that contain viruses, corrupted files, or any other similar software or programs that may adversely affect the operation of another's computer.
• not to conduct contests, distribute chain letters, or conduct “pyramid schemes” or “multi-level marketing schemes.”
• not to violate any applicable local, provincial, national or international law in connection with your use of the blog area.

Privacy policy

Our Privacy Policy is hereby incorporated by reference into the Terms of Service

Severability; Waiver

If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and shall be limited or eliminated to the minimum extent necessary so that the Terms of Service shall otherwise remain in full force and effect and enforceable. The remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.

Requirement of Arbitration

BY USING THE SITE OR SERVICES, OR DOWNLOADING CONTENT FROM OR REGISTERING FOR THE SERVICES, YOU THEREBY AGREE WITH US THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND WE WILL RESOLVE ANY ARBITRAL CLAIM (AS DEFINED BELOW) BY BINDING ARBITRATION THROUGH THE JUDICIAL ARBITRATION AND MEDIATION SERVICES IN VANCOUVER BRITISH COLUMBIA THE BRITISH COLUMBIA ARBITRATION & MEDIATION INSTITUTE (BCAMI).

AS USED IN THIS AGREEMENT, AN “ARBITRAL CLAIM” IS ANY CLAIM OR DISPUTE YOU HAVE AGAINST OR WITH US OR OUR INDEMNIFIED PARTIES, OR ANY CLAIM WE HAVE AGAINST OR WITH YOU, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SITE, THE SERVICES OR ANY ADVERTISING RELATING TO THE SITE OR SERVICES, INCLUDING THE ENFORCEABILITY OF THIS AGREEMENT TO ARBITRATE, BUT SPECIFICALLY EXCLUDING: CLAIMS BY US TO ENFORCE OUR INTELLECTUAL PROPERTY RIGHTS AND/OR TO PREVENT OR REMEDY UNFAIR COMPETITION, MISAPPROPRIATION OF TRADE SECRETS, UNAUTHORIZED ACCESS, FRAUD OR COMPUTER FRAUD, AND/OR INDUSTRIAL ESPIONAGE.

MOREOVER, NEITHER PARTY IS PRECLUDED FROM SEEKING RELIEF IN A COURT LOCATED IN VANCOUVER, BRITISH COLUMBIA, CANADA FOR PROVISIONAL REMEDIES, INCLUDING TEMPORARY RESTRAINING ORDERS, PRELIMINARY INJUNCTIONS, AND RECEIVERSHIPS, PENDING ARBITRATION OR COMPREHENSIVE LITIGATION, TO THE EXTENT AUTHORIZED ABOVE. BY USING OR DOWNLOADING CONTENT FROM OR REGISTERING FOR OR USING THE SITE OR SERVICES, YOU ARE FURTHER AGREEING WITH COMPANY THAT NEITHER YOU NOR THE COMPANY WILL JOIN ANY ARBITRAL CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY IN A LAWSUIT, ARBITRATION OR OTHER PROCEEDING; THAT NO ARBITRAL CLAIM WILL BE RESOLVED ON A CLASS-WIDE BASIS; AND THAT NEITHER YOU NOR THE COMPANY WILL ASSERT AN ARBITRAL CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE. BY USING OR DOWNLOADING CONTENT FROM OR REGISTERING FOR OR USING THE SITE OR SERVICES, YOU ALSO ARE AGREEING WITH THE COMPANY THAT YOU AND THE COMPANY HEREBY WAIVE THE RIGHT TO A JURY TRIAL FOR ANY ARBITRAL CLAIM. IF FOR ANY REASON THIS AGREEMENT TO ARBITRATE IS HELD NOT TO APPLY TO AN ARBITRAL CLAIM, WHETHER SUCH ARBITRAL CLAIM IS AGAINST YOU, COMPANY OR A COMPANY INDEMNIFIED PARTY, BOTH YOU AND THE COMPANY STILL AGREE TO WAIVE TRIAL BY JURY FOR THAT ARBITRAL CLAIM.

Miscellaneous

This Agreement is governed in all respects by the substantive laws of the province of British Columbia  and of the Dominion of Canada. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You may not assign or transfer this Agreement or your rights hereunder, and any attempt to the contrary is void. This Agreement sets forth the entire understanding and agreement between us and you with respect to the subject matter hereof. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not affect the interpretation of this Agreement. If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.

How To Contact Us
Should you have other questions or concerns about these Terms of Service, please mail us at:
# 47 20821 Fraser Highway, Suite 461, Langley, British Columbia, Canada V3A 0B6  or send us an email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . Telephone 1-888-406-1037