Terms of Use Agreement and Notices

This Web site is provided to you ("you") by TheBrain Technologies LP ("TheBrain") under the terms and conditions of this Terms of Use agreement ("Agreement"). This Agreement includes TheBrain’s Privacy Policy, which is available on this Web site at http://www.thebrain.com/about/legal/privacy/ and is incorporated herein by reference. BY USING THIS WEB SITE AND THE SERVICES IT OFFERS, YOU REPRESENT AND WARRANT THAT YOU: (i) ARE AUTHORIZED TO SIGN FOR AND BIND YOURSELF OR THE CONTRACTING PARTY AND (ii) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTIONS 7 AND 8 BELOW.

1. INTELLECTUAL PROPERTY NOTICES

The contents of this Web site, including all web pages, graphics and software that are made available to download are the copyrighted works of TheBrain, © 1998-2005. All rights reserved. This Web site may contain other proprietary notices and copyright information that should be observed.

TheBrain®, Brain™, BrainEKP™, Brain Enabled™, WebBrain™, BrainSDK™, PersonalBrain™, SiteBrain™, TeamBrain™, Smartest Way to See the Web™, Drag-and-Connect™, Visual Information Management™, Work the Way You Think™ and What You See Is What You Think™ are trademarks or registered trademarks of TheBrain in the United States and foreign countries. All other referenced marks are those of their respective owners.

If you believe that certain content made available on this Web site infringes your copyrights, please see Notice and Procedure for Making Claims of Copyright Infringement. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to TheBrain’s Designated Agent.

2. SOFTWARE AVAILABLE ON THIS SITE

Any software that is made available to download from servers owned, operated or controlled by TheBrain ("Software") is the copyrighted work of TheBrain and/or its partners. Use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software ("License Agreement").

Consent to License Agreement. If you do not agree to the terms of any such License Agreement accompanying Software made available for download on this site, you agree not to use or install such Software. Upon your consent to any applicable License Agreement, the sale of the licensed Software shall be considered final and you will not be eligible for a refund of the purchase price. If you are unsatisfied in any way with any Software provided by TheBrain, please do not hesitate to contact us at support@thebrain.com.

Credit Card Purchases. You may purchase Software using your Visa, Mastercard or American Express card. By submitting your order for processing, you authorize TheBrain to charge your order (including taxes and any other amounts described on the Site before order submission) to your card. If your card cannot be verified, is invalid, or is not otherwise acceptable, your order may be suspended or cancelled automatically. You agree to update your card information to keep it current at all times and that we may submit charges for processing even if your card has expired. You must resolve any problem before proceeding with your order.

Pricing. All prices and availability of products are subject to change without notice. Taxes may be adjusted from the amount shown on the billing screens as necessary to comply with applicable laws.

3. MEMBERSHIP BENEFITS

Registered members of this Web site benefit from promotional product downloads, customer support and occasional promotional opportunities. As part of the registration process, you agree to provide TheBrain accurate information about you and to update this information as necessary to keep it current. When you register to become a member, we will ask you to select a Password. You are solely responsible for all activities that occur under your Password. You should therefore carefully safeguard your Password, and you should notify TheBrain if at any time your Password is lost, stolen, disclosed, or otherwise compromised.

4. LINKS TO THIRD PARTY SITES

Any links included within TheBrain Web site may permit you to leave this site. These linked sites are not under the control of TheBrain, and TheBrain shall not be responsible for the contents of any linked site or any link contained in a linked site. All such sites shall be subject to the policies and procedures of the owner of such site.

5. PRIVACY

Our goal is to protect your privacy while providing you the information about our products and services that you want to receive. We will disclose to you the types of information we gather about you and how we use it, then let you decide what personal information you want to share with us for particular purposes. In short, at TheBrain, you can control the ways in which your information is used or not used. For more information about our Privacy Policy, which is incorporated herein by reference, please see http://www.thebrain.com/about/legal/privacy/.

6. MODIFICATIONS

TheBrain may amend this Agreement at any time by (i) posting a revised Terms of Use document on TheBrain Web site, and/or (ii) sending information regarding the amendment(s) to the Agreement to the e-mail address you provide to TheBrain. Your continued use of this Web site after such amended terms have been posted or information regarding such amendment(s) has been sent to you, shall be deemed your consent and agreement to such amended terms. Otherwise, this Agreement may not be amended except in writing signed by both parties. Furthermore, TheBrain reserves the right, at any time and for any or no reason, to limit, deny, modify or discontinue this Web site and/or your access to it with or without notice to you. TheBrain shall not be liable to you or any third party should TheBrain exercise its right to modify or discontinue this Web site or the services it offers.

7. DISCLAIMER OF WARRANTIES

EXCEPT AS EXPRESSLY AGREED TO IN WRITING IN ANY APPLICABLE LICENSE AGREEMENT BETWEEN YOU AND THEBRAIN, YOU EXPRESSLY AGREE THAT USE OF THE SOFTWARE, SERVICES AND/OR ANY GRAPHICS OR OTHER CONTENT YOU DOWNLOAD FROM THIS SITE IS AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH SOFTWARE, SERVICES AND/OR ANY GRAPHICS OR OTHER CONTENT. THE SOFTWARE, SERVICES AND/OR ANY GRAPHICS OR OTHER CONTENT YOU DOWNLOAD FROM THIS SITE ARE PROVIDED "AS IS." THEBRAIN, ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER THEBRAIN, NOR ITS LICENSORS OR SUPPLIERS MAKE ANY WARRANTY THAT THE SOFTWARE, SERVICES AND/OR ANY GRAPHICS OR OTHER CONTENT ACCESSIBLE TO OR DOWNLOADED FROM THIS SITE WILL MEET YOUR REQUIREMENTS, OR THAT THE SOFTWARE, SERVICES OR GRAPHICS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES THEBRAIN, ITS LICENSORS OR SUPPLIERS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE OR SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

8. EXCLUSIVE REMEDY; LIMITATION OF LIABILITY

EXCEPT AS EXPRESSLY AGREED TO IN WRITING IN ANY APPLICABLE LICENSE AGREEMENT BETWEEN YOU AND THEBRAIN, YOUR EXCLUSIVE REMEDY AGAINST THEBRAIN FOR ANY BREACH OF WARRANTY OR CONTRACT UNDER THIS AGREEMENT INCLUDING WITHOUT LIMITATION THE PRIVACY POLICY, IS LIMITED TO REPAIR, REPLACEMENT OR REFUND WITH RESPECT TO THE ITEM IN QUESTION, AT THEBRAIN’S OPTION AND SUBJECT TO APPLICABLE LAW. EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID, YOU WILL ONLY BE ENTITLED TO THE DIRECT DAMAGES THAT YOU ACTUALLY INCUR IN REASONABLE RELIANCE, UP TO THE AMOUNT OF A REFUND OF THE PRICE (PLUS SALES TAX) THAT YOU PAID FOR THE ITEM IN QUESTION. IN NO EVENT SHALL THEBRAIN, ITS LICENSORS OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SOFTWARE, SERVICE, AND/OR ANY GRAPHICS OR OTHER CONTENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF THEBRAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER THEBRAIN SHALL HAVE NO LIABILITY TO YOU OR OTHER THIRD PARTIES FOR ANY THIRD PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THIS WEB SITE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

9. INDEMNITY

You hereby agree, at your expense, to indemnify, defend and hold TheBrain harmless from and against any loss, cost, damages, liability, expense, arising out of or relating to (a) a third-party claim, action or allegation of infringement based on information, data, content or other content submitted by you, (b) any fraud or manipulation, or other breach of this Agreement, by you, or (c) any third-party claim, action or allegation brought against TheBrain arising out of your use of the Software or services offered on this site.

10. GENERAL TERMS

This Agreement is governed in all respects by the laws of the State of California, U.S.A, without reference to its conflicts of laws, principles. Any dispute arising hereunder or related to this Agreement in any way shall be submitted to state and federal courts in Los Angeles County, California and You consent to the exclusive jurisdiction of such courts. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. TheBrain’s failure to act with respect to a breach by you does not waive TheBrain’s right to act with respect to subsequent or similar breaches. You may not assign or transfer this Agreement or any rights hereunder, and any attempt to the contrary is void. This Agreement shall inure to the benefit of and be binding upon each party’s successors and assigns. TheBrain shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond TheBrain’s reasonable control. This Agreement constitutes the complete and exclusive understanding and agreement of the parties relating to the subject matter hereof and supersedes all prior understandings, proposals, agreements, negotiations, and discussions between the parties, whether written or oral.

11. INTERNATIONAL USE

Because of the global nature of the Internet, you agree to comply with all local rules regarding user conduct on the Internet. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

For more information

If you would like any additional information about TheBrain, these Terms and Conditions of Use or any of the products or services offered on this Web site, please contact info@thebrain.com or write to us at TheBrain, 11522 W. Washington Blvd. Los Angeles, CA 90066.