THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE
By accessing or using the Services (whether via an App or via the Site) you are accepting these Terms (on behalf of yourself or the entity that you represent) and you represent and warrant that you have the authority and capacity to enter into these Terms (on behalf of yourself or the entity that you represent). You may not access the Services if you are not at least 18 years old. If you do not agree with all of the provisions of these Terms, do not access and/or use the Site, any App, or the Services.
1. BRAINYMONEY CONTENT. The materials, information and content made available or displayed on the Site or any App or sent to you through the Services, and any derivative works thereof, whether made by us or you, (collectively, “Content”) are proprietary to us or our licensors and should be considered our confidential information. Subject to these Terms, including any Supplemental Terms , we hereby grant you a limited, non-exclusive, non-transferable license to view, use, download and print the Content solely for your personal, informational, non-commercial and internal review and solely in accordance with these Terms. You may not: (i) use the Content or any part thereof to develop products or technologies similar to the products of BrainyMoney; (ii) reproduce, republish, modify or alter the Content; (iii) distribute or sell, rent, lease, license or otherwise make the Content available to others; or (iv) otherwise remove any text, copyright or other proprietary notices contained in the Content. Any copy of the Content or portion thereof must include all copyright notices, information, and restrictions contained in, or attached to, any of the Content, and you must abide by the foregoing notices and restrictions. To request certain Content, you may be required to provide us with your contact information, including your email address. We may, in our sole discretion, then send you such Content in a format we determine in our sole discretion. You agree to only provide us with true, accurate, current and complete information in such request. We reserve the right to reject your request and refuse to send you our Content. We are not responsible to ensure, and disclaim any responsibility for your ability to open, use or view the Content we send you pursuant to your request. As between you and us, we retain all right, title and interest in and to the Content, and all related intellectual property rights. We reserve all rights not granted in these Terms. You will immediately notify us in the event of any loss or unauthorized disclosure of any Content. Upon our written request, or your termination of these Terms, you must promptly delete or destroy all documents and other tangible materials representing any Content and all copies thereof. Different partners may use the functionality of their own application (“Third Party App”) to provide you with the Content. You agree that the entity providing that particular App is solely responsible for the Third Party App and not BrainyMoney and that you shall look only to that entity to resolve any dispute regarding your use of that Third Party App, including any use of our Content. All offers, images, information, questions, comments, statements, and other content provided by the Third Party App (“Partner Content”) are owned by the entity providing such Partner Content. You agree that the provider of any Partner Content is solely responsible for such Partner Content and that you may be exposed to Partner Content that is offensive, indecent or objectionable to you, including questions related to political activities with which you may not agree.
2. OWNERSHIP. You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Site, Apps, or Services (including via any App) (“Our Technology”) are: (i) copyrighted by us and/or our licensors under United States and international copyright laws; (ii) subject to other intellectual property and proprietary rights and laws; and (iii) owned by us or our licensors. Our Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, and restrictions contained in or attached to any of Our Technology. Nothing in the Agreement grants you any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted through the Site according the Agreement. Furthermore, nothing in the Agreement will be deemed to grant, by implication, estoppel or otherwise, a license to Our Technology. Certain of the names, logos, and other materials displayed on the Site or in the Services constitute trademarks, tradenames, service marks or logos (“Marks”) of BrainyMoney or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with us or those other entities. Any use of third party software provided in connection with the Site, Apps, or Services will be governed by such third parties’ licenses and not by the Agreement.
3. GENERAL RULES OF USER CONDUCT. It is our goal to make access to our Site, Apps, and Services a good experience for all of our users. You agree not to, and represent and warrant that you will not, reproduce, duplicate, copy, sell, resell or exploit any portion of the Site, Apps, or Services, use of the Site, Apps, or Services or access to the Site, Apps, or Services for any purposes other than for which the Site, Apps, or Services are being provided to you, or do any of the following:
- Conduct or promote any illegal activities while using the Site, Apps, or Services;
- Upload, distribute or print anything that may be harmful to minors;
- Violate the rights of any third party, including any intellectual property rights;
- Attempt to reverse engineer or jeopardize the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site;
- Attempt to gain access to secured portions of the Site, Apps, or Services to which you do not possess access rights;
- Upload or transmit any form of virus, worm, Trojan horse, or other malicious code;
- Use the Site, Apps, or Services to generate unsolicited email advertisements or spam;
- Use the Site, Apps, or Services to stalk, harass or harm another individual;
- Use any high volume automatic, electronic or manual process to access, search or harvest information from the Site, Apps, or Services (including without limitation robots, spiders or scripts);
- Interfere in any way with the proper functioning of the Site, Apps, and Services or interfere with or disrupt any servers or networks connected to the Site, Apps, or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site, Apps, or Services;
- Use any robot, spider, other automatic device, or manual process to extract, “screen scrape,” monitor, “mine,” or copy any static or dynamic web page on the Site or the Content contained on any such web page for commercial use without our prior express written permission;
- Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or Mirror or frame the Site or any Content, place pop-up windows over its pages, or otherwise affect the display of its pages.
You may be able to post your ideas, comments or content to the Site, including a response to one of our blogs. When doing so You represent and warrant that You will not post or use any content that:
- Infringes the copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
- Violates the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation;
- Is false or inaccurate or becomes false or inaccurate at any time;
- Is discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion;
- Misrepresents the source of the Content;
- Discloses or provides information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others, insider information or material, non-public information;
- Misrepresents Your identity in any way;
- Contains any viruses, Trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- Advocates or encourages any illegal activity; or
- Has the potential to create liability for us or cause us to violate the requirements of or to lose the services, in whole or in part, of our Internet service providers or other suppliers.
4. PAYMENT TERMS. If you purchase any Service through the Site, you agree to pay any fees set forth at check-out. We utilize a third party (“Payment Provider”) to process payments. You must provide our Payment Provider with a valid credit card (Visa, MasterCard or any other issuer accepted by us) as a condition to such transactions. The Payment Provider’s policies govern the processing of your payment, and you must refer to those policies and not these Terms to determine your rights and liabilities. By providing your credit card number and associated payment information through the Site and Service, you authorize us through our Payment Provider to immediately invoice you for all fees and charges due and payable to us hereunder, and you agree that no additional notice or consent is required. We reserve the right at any time to change our payment terms, either immediately upon posting on the Site, by email delivery to you or any other reasonable method of communication.
5. TAXES. The service fees are net of any applicable sales tax. If the fees are subject to Sales Tax in any jurisdiction, you will be responsible for payment of such Sales Tax, and any related penalties or interest and will indemnify us for any liability or expense we may incur in connection with such Sales Taxes. For purposes of these Terms, “Sales Tax” will mean any sales or use tax, and any other tax measured by sales proceeds, that we are permitted to pass to you that is (a) the functional equivalent of a sales tax and (b) the applicable taxing jurisdiction does not otherwise impose a sales or use tax. We may automatically charge and withhold such taxes within any jurisdictions that it deems is required.
6. DON’T BE OFFENDED. Though we strive to enforce the rules above, You may be exposed through the Site to Content that violates our policies
7. MODIFICATIONS TO TERMS. We may change the terms of the Agreement from time to time on a going-forward basis. We will notify you of any such material changes by posting notice of the changes on the Site, and/or, in our sole discretion, by email. Any such modifications become effective upon the earlier to occur of: (i) your acknowledgement of such modifications; or (ii) your continued access to and/or use of the Site, Apps, or Services after we post notice of such modifications. It is your sole responsibility to check the Site from time to time to view any such changes to the terms in the Terms of Service. If you do not agree to any changes, if and when such changes may be made to the Terms of Service, you must cease access to the Site and use of the Services.
8. MODIFICATIONS TO THE SITE, APPS, OR SERVICES. We reserve the right to modify or discontinue the Site, Apps, or Services with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Site and/or Services. If you object to any such changes, your sole recourse will be to cease access to the Site, Apps, or Services. Continued access to the Site, Apps, or Services following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Site, Apps, or Services as so modified. You agree that we may immediately terminate your access to the Site, Apps, and Services at any time, for any reason, in our sole discretion. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE, APPS, OR SERVICES.
9. FEEDBACK. In the event that you provide us any ideas, thoughts, criticisms, suggested improvements or other feedback related to BrainyMoney, the Site or the Services (collectively “Feedback”), you agree we may use the Feedback to modify our products and services and that you will not be due any compensation, including any royalty related to the product or service that incorporates your Feedback. You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Site or through any other method of communication with us, unless we have entered into a separate agreement with you that provides otherwise.
11. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE, APP, AND/OR SERVICES IS AT YOUR SOLE RISK. THE CONTENT, SITE, APPS, AND SERVICES ARE PROVIDED BY US ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA AND SYSTEM INTEGRATION. WE MAKE NO WARRANTY THAT THE CONTENT, SITE, AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE CONTENT, SITE, APPS, OR SERVICES, OR THAT DEFECTS IN THE SITE, APPS, OR SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY CONTENT OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE, APPS, OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SERVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION. NO CONTENT, ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE, APPS, SERVICES, OR OTHERWISE WILL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
12. NOT A FINANCIAL PLANNER, BROKER OR TAX ADVISOR. BrainyMoney.com IS NOT INTENDED TO PROVIDE LEGAL, TAX OR FINANCIAL ADVICE. BrainyMoney IS NOT A FINANCIAL PLANNER, BROKER OR TAX ADVISOR. The Service is intended only to assist you in your understanding of financial organization and decision-making and is broad in scope. Your personal financial situation is unique, and any information and investing strategies obtained through BrainyMoney.com may not be appropriate for your situation. Accordingly, before making any final decisions or implementing any financial strategy, you should consider obtaining additional information and advice from your accountant or other financial advisers who is fully aware of your individual circumstances. We’ll say this: We don’t expect you pay us a share of your gains when we put you onto a good investment. SIMILARLY, WE ARE NOT LIABLE FOR ANY ACTION YOU TAKE OR FAIL TO TAKE BASED UPON INFORMATION YOU RECEIVED THROUGH THE SITE AND SPECIFICALLY WE ARE NOT LIABLE FOR ANY LOSSES YOU SUFFER AS A RESULT OF ANY SUCH ACTION OR INACTION. the app is provided as a convenience and is not intended to be used to replace any other decisioning method or tool that you use and should not be used to provided financial services to third parties, such as clients or customers.
13. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SITE AND APP AND TO PROVIDE THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY) ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY IN CONNECTION WITH ANY ACT OR OMISSION OF ANY USER OF THE SITE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN AGGREGATE, TO ONE HUNDRED DOLLARS (U.S. $100.00). 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 and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.
You acknowledge and agree that the availability of the App is dependent on the third party company from which you receive the App. You acknowledge that this Agreement is between you and BrainyMoney and not with the App Store. BrainyMoney, not the App Store, is solely responsible for the App, the content thereof, maintenance, support services, and warranty therefore, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). Each App Store may have its own terms and conditions to which you must agree before downloading the App. You agree to comply with all applicable agreements, terms and conditions of use or service, and other policies of the applicable App Store (“Usage Rules”). To the extent this Agreement provides for usage rules for the App that are less restrictive than the Usage Rules, the more restrictive or conflicting term applies. The license granted to you for the App is limited to a non-transferable license to use the App on a device that you own or control and as permitted by the Usage Rules. You agree to pay all fees charged by the App Store in connection with the App. You agree that the App Store provider (and its subsidiaries) is a third party beneficiary of this Agreement and will have the right to enforce this Agreement. You are solely responsible for providing and paying for the costs for any mobile device and any mobile voice, data and/or other service plans used in connection with the App.
Without limiting the foregoing, under no circumstances will we or our licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, OR non-performance of third parties.
14. INDEMNIFICATION. You agree to indemnify, defend and hold harmless BrainyMoney, our parents, subsidiaries, affiliates, officers, directors, co-branders and other partners, employees, consultants and agents, from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from: (i) your use of the Content, Site, or Services; (ii) your violation of the Agreement, (iii) your violation of any rights of any other person or entity; or (iv) any viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines input by you into the Site, Apps, or Services.
15. THIRD PARTY CONTENT AND OTHER WEBSITES. Content from advertisers and other third parties may be made available to you through the Site, APP, AND/OR THE SERVICES. Because WE DO NOT control such content, you agree that we ARE NOT responsible for any such content. WE DO NOT MAKE ANY guarantees about the accuracy, currency, suitability, or quality of the information in such content, and we assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users, advertisers, and other third parties OR VIOLATION OF ANY THIRD PARTY RIGHTS RELATED TO SUCH CONTENT. The Site, Apps, and Services may contain links to websites not operated by US. We are not responsible for the content, products, materials, or practices (including privacy practices) of such websites. You understand that by using the Site and/or Services you may be exposed to third-party websites that you find offensive, indecent or otherwise objectionable. We make no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, content, nature or reliability of third party websites, products or services accessible by hyperlink OR OTHERWISE from the Site, Apps, or Services. We provide these links for your convenience only and we do not control such websites. Our inclusion of links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators. The Site, Apps, and Services may contain links to websites THAT ARE operated by US BUT WHICH OPERATE UNDER DIFFERENT TERMS OF SERVICE. It is your responsibility to review the privacy policies and Terms of Service of any other website you visit. You agree that in no event will we be liable to you in connection with any websites, content, products, materials, or practices of any third party.
16. ELECTRONIC COMMUNICATIONS. We can only give you the benefits of our service by conducting business through the Internet, and therefore we need you to consent to our giving you Communications electronically. For contractual purposes, you: (i) consent to receive Communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in a writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may also receive a copy of the Agreement by accessing this Site or the App. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent, from that time forward, you must stop using the Site, Apps, and Services. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption.
17. COPYRIGHT VIOLATIONS. We respect the intellectual property of others, and we ask You to do the same. If You believe that Your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that You claim has been infringed;
- A description of where the material that You claim is infringing is located on the Site, Apps, or Services;
- Your address, telephone number, and email address;
- A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright owner or are authorized to act on the copyright owner’s behalf.
Our copyright agent for notice of claims of copyright infringement on the Site or the Services can be reached by mail at: info@BrainyMoney.com.
18. DISPUTE RESOLUTION. Except for a claim by BrainyMoney of infringement or misappropriation of BrainyMoney’s patent, copyright, trademark, or trade secret, any and all disputes between you and BrainyMoney arising under or related in any way to these Terms must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of the Site, App, or Services.
YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND BRAINYMONEY ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND BRAINYMONEY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
(a) Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and us and our employees, agents, successors, or assigns, regarding or relating to these the Services or these Terms, shall exclusively be settled through binding and confidential arbitration.
(b) Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS. As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
(c) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(d) You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
(e) Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York, New York. Additionally, notwithstanding these Terms to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York, New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(f) With the exception of subparts (1) and (2) in the paragraph 11.2(b) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 11.2(b) (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in New York, New York.
(g) Notwithstanding any provision in these Terms to the contrary, if we seek to terminate the Dispute Resolution section as included in the Agreement, any such termination shall not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to the Site or Mobile App, and shall not be effective as to any claim of which you provided us with written notice prior to the date of termination. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com.
19. GENERAL TERMS. You are responsible for compliance with all applicable laws. The Terms of Service and the relationship between you and BrainyMoney will be governed by the laws of the Commonwealth of Massachusetts, without giving effect to any choice of laws principles that would require the application of the laws of a different country or state. Any legal action, suit or proceeding arising out of or relating to the Terms of Service, or your use of the Site, Apps, or Services must be instituted exclusively in the federal or state courts located in Suffolk County, Massachusetts and in no other jurisdiction. You further consent to exclusive personal jurisdiction and venue in, and agree to service of process issued or authorized by, any such court. The Agreement are personal to you, and you may not transfer, assign or delegate your right and/or duties under the Agreement to anyone else and any attempted assignment or delegation is void. You acknowledge that we have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of your obligations hereunder. The paragraph headings in the Agreement, shown in boldface type, are included only to help make the Agreement easier to read and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is set forth in writing, signed by us; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default. The Agreement constitute the complete and exclusive agreement between you and us with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of the Agreement, or portion thereof, to be unenforceable, that provision of the Terms of Service will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of the Agreement will continue in full force and effect.
20. SURVIVAL. Sections 1, 2, 4, 5, 9, and 11 through 21, as well as any other limitations on liability explicitly set forth herein and our proprietary rights in and to the Site, Content, Our Technology and the Services, will survive the expiration or termination of the Agreement for any reason.
21. NOTICE; VIOLATIONS. We may give notice to you by email, a posting on the Site, or other reasonable means. You must give notice to us in writing via email to or as otherwise expressly provided. Please report any violations of the Agreement to info@BrainyMoney.com.
22. INTENTIONALLY LEFT BLANK
23. ACKNOWLEDGEMENT. BrainyMoney and you acknowledge that this Agreement is concluded between BrainyMoney and you only, and not with Apple, Inc., or Google, Inc. BrainyMoney, not Apple or Google, is solely responsible for App and the content thereof. To the extent this Agreement provides for usage rules that are less restrictive than or otherwise is in conflict with the usage rules provided by the applicable App Store, the more restrictive term applies.
24. MAINTENANCE AND SUPPORT. BrainyMoney is solely responsible for providing any maintenance and support services with respect to App, as specified in this Agreement (if any), or as required under applicable law. BrainyMoney and you acknowledge that neither Google nor Apple have no obligation whatsoever to furnish any maintenance and support services with respect to App.
25. WARRANTY. BrainyMoney is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for App to you; and to the maximum extent permitted by applicable law, neither Apple nor Google will have any other warranty obligation whatsoever with respect to App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be BrainyMoney’s sole responsibility.
26. PRODUCT CLAIMS. BrainyMoney and you acknowledge that BrainyMoney, not Apple or Google, is responsible for addressing any claims of you or any third party relating to App or your possession and/or use of App, including, but not limited to: (a) product liability claims; (b) any claim that App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. This Agreement does not limit BrainyMoney’s liability to you beyond what is permitted by applicable law. You acknowledge and agree that the applicable Partner and not BrainyMoney, is responsible for addressing any claims of you or any third party relating to any Partner Content, including, but not limited to: (a) product liability claims; (b) any claim that App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
27. INTELLECTUAL PROPERTY RIGHTS. BrainyMoney and you each acknowledge that, in the event of any third party claim that App or your possession and use of App infringes that third party’s intellectual property rights, BrainyMoney, not Apple or Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You acknowledge that, in the event of any third party claim that any Partner Content or your possession and use of any Partner Content infringes that third party’s intellectual property rights, privacy, rights, publicity rights, or is otherwise fraudulent deceptive, or unfair, the applicable partner, and not BrainyMoney, will be solely responsible for the investigation, defense, settlement and discharge of any such complaint or claim.