1. Definitions of Parties and Related Persons.
The terms "we," "us," "our," and "ours," and other first person personal pronouns shall mean and refer to Vortex AMC, LLC operating the website BrainRecharge.com, and its members, successors, assigns, affiliates, subsidiaries, and business licensors (collectively and individually referred to herein as "Brain Recharge"). The terms "you", "your", "yours", and other second person personal pronouns mean and refer to all persons who use or visit the Online Services provided by Brain Recharge.
We may change these Terms at any time by notifying you of the change in writing or electronically (including without limitation, by E-mail or by posting a notice on the Online Services that these Terms have been "updated"). The changes also will appear in this document, which you can access at any time by going to the link to these Terms at the bottom of every page. You signify that you agree to be bound by such changes by using any of the Online Services after changes are made to these Terms.
3. Limitations on Use.
- 3.1. Access to Online Services. Only one individual may access any of the Online Services at the same time using the same user name or password, unless we agree otherwise.
- 3.2. Eligibility. You may use the Online Services only if you are 13 years or older and are not barred from using the Online Services under applicable law.
- 3.3. Our Intellectual Property Rights. The text, graphics, images, video, metadata, design, organization, compilation, look and feel, advertising and all other protectable intellectual property (the "Content") available through the Online Services are our property or the property of our advertisers and licensors and are protected by copyright and other intellectual property laws. You may only access and view the Content personally and for a non-commercial purpose in compliance with these Terms. You may not either directly or through the use of any device, software, internet site, web-based service, or other means remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on the Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Content. You may not either directly or through the use of any device, software, internet site, web-based service, or other means copy, download, stream capture, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the Content unless expressly permitted by Brain Recharge in writing. You may not incorporate the Content into, or stream or retransmit the Content via, any hardware or software application or make it available via frames or in-line links unless expressly permitted by Brain Recharge in writing. Furthermore, you may not create, recreate, distribute or advertise an index of any significant portion of the Content unless authorized by Brain Recharge. You agree not to post any Content (other than headlines from our RSS feed with active links back to the full article on the Online Services) to blogs, newsgroups, mail lists or electronic bulletin boards, without our written consent. You may not build a business utilizing the Content, whether or not for profit. In addition, you are strictly prohibited from creating derivative works or materials that otherwise are derived from or based on in any way the Content, including montages, mash-ups and similar videos, wallpaper, desktop themes, greeting cards, and merchandise, unless it is expressly permitted by Brain Recharge in writing. This prohibition applies even if you intend to give away the derivative materials free of charge.
- 3.4. Limited Rights in Our App. Subject to your compliance with these Terms, Brain Recharge grants you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. Brain Recharge reserves all rights in and to the App not expressly granted to you under these Terms. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means.
- 3.5. You Agree Not to Use the Online Services for Any Unlawful Purpose. We reserve the right to terminate or restrict your access to any of the Online Services if, in our opinion, your use of the Online Services may violate any laws, regulations or rulings, infringe upon another person's rights or violate these Terms. Also, we may refuse to grant you a user name that impersonates someone else, is protected by trademark or other proprietary right law, or is vulgar or otherwise offensive.
- 3.6. Do Not Use While Engaged in Certain Activities. Do not use the Online Services while driving, operating heavy machinery, or performing other tasks that require attention and concentration.
4. Paid Services
While it is our mission to provide users with as many content choices as possible, sometimes that involves giving users the choice of paying a fee in order to access Content that Brain Recharge would not otherwise be able to make available without charging a fee (the “Paid Services”). Accordingly, access to the Content in the Paid Services may requires payment by you of a subscription fee.
You agree to pay the subscription fees and any other fees for additional Online Services you may purchase and any applicable taxes in connection with your use of Paid Services at the rates in effect when the charges are incurred. If your subscription includes access to areas containing Premium content or services, your access to such areas may be subject to additional fees, terms and conditions, which will be separately disclosed in such areas. Subscription fees will be billed at the beginning of your subscription or any renewal. Unless we state in writing otherwise, all fees and charges are nonrefundable. We may change the fees and charges then in effect, or add new fees or charges, by giving you notice in advance. If you want to use a different credit card or there is a change in credit card validity or expiration date, or if you believe someone has accessed any of the Online Services using your user name and password without your authorization, you must contact Brain Recharge to alert us to the problem.
If you choose to initiate a purchase transaction via the Online Services that involves third party service providers, you authorize us to provide your payment information to third party service providers so we can complete your transaction and you agree to pay the applicable fees and any taxes; that Brain Recharge may charge your credit card or third party payment processing account, including, but not limited to, your account with the app store or distribution platform (like the Apple App Store, Google Play or the Amazon Appstore) where the App is made available (each, an “App Provider”), for verification, pre-authorization and payment purposes; and to bear any additional charges that your App Provider, bank or other financial service provider may levy on you as well as any taxes or fees that may apply to your order.
When a purchase is made, Brain Recharge will send you an E-mail link to verify your E-mail address. If you subsequently change E-mail addresses, you acknowledge that it is your responsibility to change the E-mail address which you have registered for use of the Online Services. If you stop receiving or become unable to access the Content, it is your responsibility to contact Brain Recharge to investigate. You also pledge to do everything in your power to make sure that the E-mails can get through your company's E-mail filters.
You agree that your Paid Services account is for individual use only and your Paid Services account is limited to only one simultaneous stream at a time. You also agree that you are voluntarily choosing to purchase this Content and that Brain Recharge makes no promises that you will like the Content or agree with the Content.
If you choose to cancel your subscription for Paid Services, you must do so in writing and you understand that no refunds will be granted for any Content you have received. If you cancel a subscription before it's completed, you understand that you will only be refunded for the unused portion of the subscription.
5. Provisions for Automatic Membership Subscription Only
Certain Paid Services (including Premium Membership) may be provided in the form of an automatic monthly membership subscription ("Automatic Membership Subscription"). If Automatic Membership Subscription applies to a particular Paid Service, the Online Services will specify that.
By providing a credit card or other payment method accepted by us ("Payment Method") for your Automatic Membership Subscription, you are expressly agreeing that we are authorized to charge you a monthly subscription fee, any other fees for additional services you may purchase, and any applicable taxes in connection with your use of the Online Services. If you want to use a different Payment Method than the one you signed up for during registration, or if there is a change in your credit card validity or expiration date, you may edit your Payment Method information by logging in on the Online Services. If your Payment Method expires and you do not edit your Payment Method information or cancel your account, you authorize us to continue billing, and you will remain responsible for any uncollected amounts.
As used in these Terms, "billing" shall indicate either a charge or debit, as applicable, against your Payment Method. The subscription fee will be billed at the beginning of your subscription or expiration of your free trial period, if any, whichever is earlier, and on each monthly renewal thereafter unless and until you cancel your subscription or the account or service is otherwise suspended or discontinued pursuant to these Terms.
We automatically bill your Payment Method each month on the calendar day corresponding to the commencement of your subscription (each such month, a "Monthly Period"). In the event your subscription began on a day not contained in a given month, we bill your Payment Method on the last day of such month. You acknowledge that the amount billed each Monthly Period may vary due to promotional offers, changes in your subscription plan, and changes in applicable taxes, and you authorize us to charge your Payment Method for the corresponding amounts. If we change the subscription fee or other charges for any Automatic Membership Subscription from time to time, we will give you advance notice of these changes by E-mail.
Your Automatic Membership Subscription will continue in effect on a month-to-month basis unless and until you cancel your subscription or the account or service is otherwise suspended or discontinued pursuant to these Terms. You must cancel your subscription before it renews each Monthly Period in order to avoid the next billing. We will bill the monthly subscription fee plus any applicable taxes to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information). If you cancel your subscription, cancellation will be effective at the end of the current Monthly Period, which means that you will have continued access to the Paid Services for the remainder of that period, but you will not receive a refund.
6. Risk of Loss
All purchases of items from the Online Services are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
7. Returns Policy for Products
The term "Products" means tangible personal property such as Books, DVDs, CDs and jewelry. Products can be returned at your own cost within 7 days of when you receive them, provided that the Products must be returned in the original manufacturer's packaging.
We do not take title to returned Products until we receive the Products. At our discretion, a refund may be issued without requiring a return. In this situation, we do not take title to the refunded Products.
8. Gift Certificates
Gift certificates purchased on or through the Online Services (the "Gift Certificates") may only be redeemed toward the purchase of eligible goods or services through the Online Services. Redemption of Gift Certificates is subject to change in our sole discretion. If a purchase exceeds the redeemer’s Gift Certificate balance, the remaining amount must be paid with another payment method.
Gift Certificates do not expire. However, Gift Certificates cannot be refunded, reloaded, resold, transferred for value, redeemed for cash, or applied to any other account, either prior or subsequent to redemption, unless otherwise required by applicable law.
9. Your Account
In order to access certain features of the Online Services, you will have to create an Brain Recharge account. You must not use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Brain Recharge immediately of any breach of security or unauthorized use of your account. Although Brain Recharge will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Brain Recharge or others due to such unauthorized use.
10. Collection and Use of Personal Information
11. Community Area
We require you to register and create a user name to have access to our community area. We reserve the right to disclose any information about you, including registration data, in order to comply with any applicable laws and/or requests under legal process, to operate our systems properly, to protect our property or rights, and to safeguard the interests of others.
12. User-Generated Content.
- 12.1. User Content. Any text, photos, videos or other types of content you post or upload to the Online Services in connection with the use of the Online Services, including feedback, or in the creation of a user account (“User Content”) is subject to the various terms and conditions set forth below.
- Brain Recharge takes no responsibility and assumes no liability for any User Content posed or uploaded by you or any third party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Brain Recharge may, though it is not required to, monitor or remove any User Content or other information submitted by you or any other user for any reason and without notice. This includes all materials related to your use of the Online Services or membership, including E-mail accounts, postings, profiles or other personalized information you have created in connection with your use of the Online Services.
13. Rights You Grant Us.
You represent and warrant that: (i) you own all User Content posted by you on or through the Online Services or otherwise have the right to grant licenses to Brain Recharge, as set forth in this section, and (ii) your User Content is accurate and not misleading and (iii) the posting of your User Content on or through the Online Services does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity or violate any applicable law, rule, regulation or order. You agree to pay for all royalties, fees, damages and any other monies owing to any person by reason of any User Content provided by you to or through the Online Services.
14. User Content and Community
- 14.1. Cautions Regarding Other Users and User Content. You understand and agree that User Content includes information, views, opinions, and recommendations of many individuals and organizations and is designed to help you gather the information you need to help you make your own decisions. Importantly, you are responsible for your own decisions and for properly analyzing and verifying any information you intend to rely upon. We do not endorse any recommendation or opinion made by any user. You should also be aware that other users may use our Online Services for personal gain. As a result, please approach messages with appropriate skepticism. User Content may be misleading, deceptive, or in error.
- 14.2. Rules of Conduct. Users must not post material that is offensive, contains personal attacks, is misleading or demonstrably false or is solely (or overwhelmingly) self-promotional.
15. Linked Destinations and Advertising
- Brain Recharge is not responsible for the content or practices of any website or destination other than the Online Services, even if it links to the Online Services and even if the website or destination is operated by a company affiliated or otherwise connected with Brain Recharge. By using the Online Services, you acknowledge and agree that Brain Recharge is not responsible or liable to you for any content or other materials hosted and served from any website or destination other than the Online Services.
- 15.2. Advertisements. Brain Recharge takes no responsibility for advertisements or any third-party material, nor does it take any responsibility for the products or services provided by advertisers. Any dealings you have with advertisers found while using the Online Services are between you and the advertiser, and you agree that Brain Recharge is not liable for any loss or claim that you may have against an advertiser.
- 16.1. Disclaimers of Warranties and Limitations on Liability. You agree that your access to, and use of, the services and the content available through the Online Services is on an "as-is", "as available" basis and we specifically disclaim any representations or warranties, express or implied, including, without limitation, any representations or warranties of merchantability or fitness for a particular purpose. Brain Recharge will not be liable (jointly or severally) to you or any other person as a result of your access or use of the Online Services for indirect, consequential, special, incidental, punitive, or exemplary damages, including, without limitation, lost profits and lost revenues (collectively, the "excluded damages"), whether or not characterized in negligence, tort, contract, or other theory of liability, even if Brain Recharge has been advised of the possibility of or could have foreseen any of the excluded damages, and irrespective of any failure of an essential purpose of a limited remedy.
- 16.2. Medical Disclaimer. You understand and agree that the Online Services and any other information you learn from Brain Recharge are not intended, designed, or implied to diagnose, prevent, or treat any condition or disease, to ascertain the state of your health, or to be a substitute for professional medical care. We assume no responsibility for injuries suffered while engaging in any techniques presented in the Online Services. We strongly recommend that you get professional medical advice before you apply those techniques.
- 16.3. Future Functionality Disclaimer. You agree that your purchases of the Online Services are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Brain Recharge regarding future functionality or features. You understand that the use of any update to any functionality or feature of the Online Services may be subject to additional terms and you may be required to agree to such terms in writing prior to receiving such an update.
17. Disputes and Jurisdiction
- 17.1. Resolving Disputes. Since we always prefer to find ways to satisfy you as quickly and efficiently as possible, we want to address your concerns without needing a formal legal case. Before filing a claim against Brain Recharge, you agree to try to resolve any dispute or claim relating to your relationship with Brain Recharge or your use of products or services sold or distributed through the Online Services ("Dispute") informally by contacting us at support@BrainRecharge.com. We will also try to resolve the dispute informally by contacting you by E-mail. If a dispute is not resolved within 30 days of submission, you or Brain Recharge may bring a formal proceeding.
- 17.2. We Both Agree to Arbitrate. You and Brain Recharge agree to resolve any claims relating to these Terms or the Online Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below. The Federal Arbitration Act and federal arbitration law apply to these Terms. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow these Terms as a court would.
- The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Brain Recharge will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
- 17.3. No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed.
- If for any reason a Dispute proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
- 17.4. Exceptions to Agreement to Arbitrate. Either you or Brain Recharge may assert claims, if they qualify, in small claims court in Maricopa County, Arizona or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Online Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
- You agree that these Terms, as well as any and all claims arising from these Terms will be governed by and construed in accordance with the laws of the State of Arizona, United States of America, without regard to any conflict or choice of law principles. The sole jurisdiction and venue for any litigation arising out of these Terms will be an appropriate federal or state court located in Arizona. These Terms will not be governed by the United Nations convention on contracts for the international sale of goods.
18. General Provisions.
- 18.1. Online Services Policies. Please review our other policies posted on BrainRecharge.com. These policies also govern your use of or visit to the Online Services. We reserve the right to make changes to our Online Services policies and these Terms at any time.
- 18.2. Severability. If any provision of these Terms or its application is invalid, void or unenforceable, the remainder of these Terms will not be impaired or affected and will remain in full force and effect.
- 18.3. Entire Agreement. These Terms contain the final and entire agreement between us regarding your use of the Online Services and supersedes all previous and contemporaneous oral or written agreements regarding your use of the Online Services.
- 18.4. Waiver. Unless otherwise specified in these Terms, the failure by a party to require performance of any provision shall not affect that party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
- 18.5. Change to Online Services. We may discontinue or change the Online Services, or their availability to you, at any time for any reason and without notice to you.
- 18.6. No Assignment. These Terms are personal to you, which means that you may not assign your rights or obligations under these Terms to anyone. No third party is a beneficiary of these Terms.
- 18.7. Survival of Termination. The following provisions will survive expiration or termination of these Terms: Sections 7 through 11 of these Terms and other provisions that by their nature are intended to survive termination of these Terms.