Terms of Service

Last updated: June 13, 2024

1. Your Relationship With Us

Welcome to Zentopia, which is provided by BrainCo Inc. and/or its affiliates (collectively such entities will be referred to as “BrainCo”, “we” or “us”).

You are reading the terms of service (the “Terms”), which govern the relationship and serve as an agreement between you and us and set forth the terms and conditions by which you may access and use Zentopia products, services and websites (the “Platform” or “Zentopia”), which include OxyZen, FocusZen devices and other applicable Zentopia-related devices (collectively the “Zentopia Device”) and associated applications, websites, software and related services accessed via any platform or device (collectively, the “Services”). Access to certain Services or features of the Services may be subject to age restrictions and not available to all users of the Services. Our Services are provided for private, non-commercial use. For purposes of these Terms, “you” and “your” means you as the user of the Services. Please read the Terms carefully before using or accessing the Services, especially the highlighted or bold contents. Unless the Terms otherwise require, words importing the singular also include the plural and vice versa.

You must be at least 13 years old or the equivalent age as specified by law in your jurisdiction to use our Services or accept the Terms, unless you use the Services or accept the Terms with the consent of your parent or legal guardian. If you are under 18 or the equivalent age as specified by law in your jurisdiction, you represent that you have your parent or legal guardian’s permission to use the Service. Please be sure your parent or legal guardian has reviewed and discussed these Terms with you. If you are a parent or legal guardian of a user under the age of 18, by allowing your child to use the Service, you are subject to the Terms and responsible for your child’s activity on the Service. If you do not agree to be bound by the Terms, you must not register for, access or use any Zentopia services, or allow anyone else to do so.

2. Accepting the Terms

By registering for, accessing or using our Services, or otherwise accepting these Terms, or clicking Accept (if applicable), you confirm that you can form a binding contract with BrainCo, that you accept these Terms and that you agree to comply with them. Your access to and use of our Services are also subject to our Privacy Policy, the terms of which can be found directly on the Platform, or where the Platform is made available for download, on your mobile device’s applicable app store, and are incorporated herein by reference. By using the Services, you consent to the terms of the Privacy Policy.

You can accept the Terms by accessing or using our Services. You understand and agree that we will treat your access or use of the Services as acceptance of the Terms from that point onwards.

3. Changes to the Terms

We amend these Terms from time to time, for instance when there are regulatory changes. We will use commercially reasonable efforts to generally notify all users of any material changes to these Terms, such as through a notice on our Platform or app, however, you should look at the Terms regularly to check for such changes. We will also update the “Last Updated” date at the top of these Terms, which reflects the effective date of such Terms. YOUR CONTINUED ACCESS OR USE OF THE SERVICES AFTER THE DATE OF THE NEW TERMS CONSTITUTES YOUR ACCEPTANCE OF THE NEW TERMS. IF YOU DO NOT AGREE TO THE NEW TERMS, YOU MUST STOP ACCESSING OR USING THE SERVICES.

4. Your Account with Us

To access or use some of our Services, you must create an account with us. When you create this account, you must provide accurate and up-to-date information. It is important that you maintain and promptly update your details and any other information you provide to us, to keep such information current and complete.

It is important that you keep your account password confidential and do not disclose it to any third party. If you know or suspect that any third party knows your password or has accessed your account, you must notify us immediately by sending your request to the email address provided in the “Contact Us” section below.

You agree to be responsible for all charges resulting from the use of your account via the Zentopia Service and will indemnify us for any losses we suffer due to your use or misuse of the Zentopia Service including charges resulting from any unauthorized use of your account. Unless otherwise agreed in an amendment, user subscriptions cannot be shared or used by more than one individual user. Notwithstanding anything to the contrary, you acknowledge and agree that we may access, use, preserve and/or disclose your account information if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce the Terms including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect our rights, property or safety of the rights, property or safety of our users or the public as considered necessary by us or permitted by law.

You agree that you are solely responsible (to us and to others) for the activity that occurs under your account.

We reserve the right to disable your user account at any time, including if you have failed to comply with any of the provisions of these Terms, or if activities occur on your account which, in our sole discretion, would or might cause damage to or impair the Services or infringe or violate any third party rights, or violate any applicable laws or regulations.

If you no longer want to use our Services and would like your account deleted, check the Terms and Conditions on Deletion of Zentopia Account and follow the instructions to delete your Zentopia account. We will provide you with further assistance and guide you through the process. Once you choose to delete your account, you will not be able to reactivate your account or retrieve any of the content or information you have added.

5. Your Access to and Use of Our Services

5.1. Your access to and use of the Services are subject to these Terms and all applicable laws and regulations. You may not:

· access or use the Services if you are not fully able and legally competent to agree to these Terms or are not authorized to use the Services by your parent or legal guardian;

· make unauthorized copies, modify, adapt, translate, reverse engineer, disassemble, decompile or create any derivative works of the Services or any content included therein, including any files, tables or documentation (or any portion thereof) or determine or attempt to determine any source code, algorithms, methods or techniques embodied by the Services or any derivative works thereof;

· distribute, license, transfer, or sell, in whole or in part, any of the Services or any derivative works thereof;

· market, rent or lease the Services for a fee or charge, or use the Services to advertise or perform any commercial solicitation;

· use the Services, without our express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;

· interfere with or attempt to interfere with the proper working of the Services, disrupt our website or any networks connected to the Services, or bypass any measures we may use to prevent or restrict access to the Services;

· incorporate the Services or any portion thereof into any other program or product. In such case, we reserve the right to refuse service, terminate accounts or limit access to the Services in our sole discretion;

· use automated scripts to collect information from or otherwise interact with the Services;

· impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity, including giving the impression that any content you upload, post, transmit, distribute or otherwise make available emanates from the Services;

· intimidate or harass another, or promote sexually explicit material, violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;

· use or attempt to use another’s account, service or system without authorization, or create a false identity on the Services;

· use the Services in a manner that may create a conflict of interest or undermine the purposes of the Services, such as trading reviews with other users or writing or soliciting fake reviews;

· use the Services to upload, transmit, distribute, store or otherwise make available in any way:

Ø files that contain viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful;

Ø any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other prohibited form of solicitation;

Ø any private information of any third party, including addresses, phone numbers, email addresses, number and feature in the personal identity document (e.g., National Insurance numbers, passport numbers) or credit card numbers;

Ø any material which does or may infringe any copyright, trademark or other intellectual property or privacy rights of any other person;

Ø any material which is defamatory of any person, obscene, offensive, pornographic, hateful or inflammatory;

Ø any material that would constitute, encourage or provide instructions for a criminal offense, dangerous activities or self-harm;

Ø any material that is deliberately designed to provoke or antagonize people, especially trolling and bullying, or is intended to harass, harm, hurt, scare, distress, embarrass or upset people;

Ø any material that contains a threat of any kind, including threats of physical violence;

Ø any material that is racist or discriminatory, including discrimination on the basis of someone’s race, religion, age, gender, disability or sexuality;

Ø any answers, responses, comments, opinions, analysis or recommendations that you are not properly licensed or otherwise qualified to provide; or

Ø material that, in the sole judgment of BrainCo, is objectionable or restricts or inhibits any other person from using the Services, or may expose BrainCo, the Services or its users to any harm or liability of any type.

5.2. We reserve the right, at any time and without prior notice, to remove or disable access to content at our discretion for any reason or no reason. Some of the reasons we may remove or disable access to content may include finding the content objectionable, in violation of these Terms or our Community Policy, or otherwise harmful to the Services or our users. Our automated systems analyze your content (including emails) to provide you personally relevant product features, such as customized search results, tailored advertising, and spam and malware detection. This analysis occurs as the content is sent, received, and when it is stored.

5.3. Informational Purposes Only

YOU ACKNOWLEDGE THAT YOU ARE AWARE THAT: (A) CONTENT GENERATED OR FOUND THROUGH ZENTOPIA DEVICES AND SERVICES AND IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO REPLACE THE RELATIONSHIP BETWEEN A USER AND THE RESEARCHER OR THE USER’S PHYSICIAN OR OTHER HEALTHCARE OTHER PROFESSIONAL; (B) ZENTOPIA DEVICE IS NOT A MEDICAL DEVICE AND THE INFORMATION GENERATED BY ZENTOPIA DEVICE IS NOT MEDICAL INFORMATION; (C) ZENTOPIA DEVICES AND ASSOCIATED APPLICATIONS ARE NOT DESIGNED TO TREAT OR DIAGNOSE ANY DISEASE OR MEDICAL CONDITION; AND (D) WE ARE NOT A LICENSED MEDICAL OR HEALTHCARE CARE PROVIDER AND HAVE NO EXPERTISE IN DIAGNOSING, EXAMINING, OR TREATING MEDICAL CONDITIONS OF ANY KIND.

5.4. Local Law

We make no representation that materials contained, described or offered via any Zentopia Service are accurate, appropriate or available for use in all jurisdictions, or that these Terms comply with the laws of any particular country. Users of the Zentopia Service use the Zentopia Service on their own initiative and are responsible for compliance with all applicable laws. Notwithstanding anything to the contrary, you agree that you and your users will not access the Zentopia Service from any territory where it is illegal, and that you and your users, and not BrainCo, are responsible for compliance with applicable law.

5.5. Third-Party Applications

During use of the Zentopia Service, you may download, install, register for, access, use and/or acquire third party applications as a matter of convenience. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between you and the applicable third-party application provider. You agree that you will comply with any license agreements and restrictions applicable to such third-party applications. We and our licensors will have no liability, obligation or responsibility in relation to such activity. We do not endorse or control any third-party applications. You will access and/or acquire such third-party applications at your own risk and in no event will we or our licensors be responsible for any content, products, or other materials on or available from third parties (even if they are acquired through us).

5.6. Information We Collect, Use and Safeguard

We are subject to certain laws and regulations, some of which are described below. Please visit our Privacy Policy for more information on how we collect, use, and safeguard your personal information.

6. Intellectual Property Rights

As between you and us, we will at all times be and remain, the sole and exclusive owner of any Zentopia Services and all intellectual property rights pertaining thereto. Nothing in the Terms will be deemed to grant or assign to you any proprietary or ownership interest or intellectual property rights in or to any Zentopia Service, our materials or any derivatives of such, other than the license rights specifically set forth herein. Your sole rights thereto will be only those rights granted by us under these Terms.

All branding elements are either our property or the property of our affiliates or licensors. We retain the right to rescind, terminate and/or cancel the limited license granted hereunder at any point, for any reason. All rights not expressly granted herein by us to you are fully reserved by us, our affiliates and licensors. Some product names, logos, brands, and other trademarks featured or referred to within Zentopia Service may not be owned by us, and are the property of their respective trademark holders. These trademark holders are not affiliated with, nor do they sponsor or endorse, BrainCo, the Zentopia Service and/or BrainCo’s products and services. Further, you are granted no right or license in any of the aforesaid branding elements, and further agree that you will not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) contained within the Zentopia Services. Each time you wish to use any of our branding elements, you must ensure that you contact us and comply with our relative policy. As between you and us, we will at all times be and remain, the sole and exclusive owner of the branding elements and all our intellectual property rights. Nothing in the Terms will be deemed to grant or assign to you any proprietary or ownership interest or intellectual property rights in or to branding elements or any derivatives of such. You will continually use your best efforts to protect BrainCo’s trademarks, trade names, patents, copyrights, and other proprietary rights, but will not initiate legal action against third parties for infringement thereof. You will promptly notify BrainCo of any infringement or improper or unauthorized use of which you have actual knowledge.

We respect the intellectual property of others and asks that users of our Services do the same. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, please send your request to the email address provided in the “Contact Us” section below.

Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.

7. Content

We accept no liability in respect of any content submitted by users and published by us or by authorized third parties.

If you wish to file a complaint about information or materials uploaded by other users, contact us by sending your request to the email address provided in the “Contact Us” section below.

All user content is the sole responsibility of the person who originated such content. You acknowledge that all user content you transmit (including any user content you export from the Zentopia Service) or access using the Zentopia Service is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom. You remain solely responsible for all user content that is transmitted (including any user content you export from the Zentopia Service) in connection with the Zentopia Service, and you warrant that you possess all rights necessary to provide and share such user content. We reserve the right to remove from any Zentopia Service any user content that BrainCo, in its sole discretion, believes to be objectionable. You understand that, by providing user content in connection with the Zentopia Service, you hereby grant BrainCo a non-exclusive, irrevocable, worldwide, royalty-free license to reproduce, distribute, transmit, publicly perform, publicly display, digitally perform, modify, create derivative works of, and otherwise use user content in any media now existing or developed in the future only so far as required to deliver Zentopia services and products. You waive any rights of publicity, moral or other similar right with respect to user content while used in accordance with the preceding sentence. Further, you represent and warrant that: (a) you have all the rights necessary to grant BrainCo such license; and (b) you are responsible for user content that may be lost or unrecoverable through your use of the Zentopia Service. We recommend that you create and maintain regular backups of all user content and associated data. We reserve the right to place service limits (including limits on the volume of data and time) on the user content and associated data stored or retained by or on behalf of BrainCo.

We make no representations, warranties or guarantees, whether express or implied, that any Zentopia content is accurate, complete or up to date. Where our Services contain links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them. You acknowledge that we have no obligation to pre-screen, monitor, review, or edit any content posted by you or other users on the Services.

BrainCo takes reasonable measures to expeditiously remove from our Services any infringing material that we become aware of. It is BrainCo’s policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users of the Services who repeatedly infringe copyrights or intellectual property rights of others.

While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending us or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to us, you agree that:

· BrainCo has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason; and

· Feedback is provided on a non-confidential basis, and we are not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way.

8. Indemnity

You agree to defend, indemnify, and hold harmless BrainCo, its parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees, agents and advisors from any and all claims, liabilities, costs, and expenses, including, but not limited to, attorneys’ fees and expenses, arising out of a breach by you or any user of your account of these Terms or arising out of a breach of your obligations, representations and warranties under these Terms.

9. EXCLUSION OF WARRANTIES

NOTHING IN THESE TERMS SHALL AFFECT ANY STATUTORY RIGHTS THAT YOU CANNOT CONTRACTUALLY AGREE TO ALTER OR WAIVE AND ARE LEGALLY ALWAYS ENTITLED TO AS A CONSUMER.

THE SERVICES ARE PROVIDED “AS IS” AND WE MAKE NO WARRANTY OR REPRESENTATION TO YOU WITH RESPECT TO THEM. IN PARTICULAR WE DO NOT REPRESENT OR WARRANT TO YOU THAT:

YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS;

YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR;

ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND

DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.

NO CONDITIONS, WARRANTIES OR OTHER TERMS (INCLUDING ANY IMPLIED TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE OR CONFORMANCE WITH DESCRIPTION) APPLY TO THE SERVICES EXCEPT TO THE EXTENT THAT THEY ARE EXPRESSLY SET OUT IN THE TERMS. WE MAY CHANGE, SUSPEND, WITHDRAW OR RESTRICT THE AVAILABILITY OF ALL OR ANY PART OF OUR PLATFORM FOR BUSINESS AND OPERATIONAL REASONS AT ANY TIME WITHOUT NOTICE.

10. LIMITATION OF LIABILITY

NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS AND FOR FRAUD OR FRAUDULENT MISREPRESENTATION.

SUBJECT TO THE PARAGRAPH ABOVE, WE SHALL NOT BE LIABLE TO YOU FOR:

(I) ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY);

(II) ANY LOSS OF GOODWILL;

(III) ANY LOSS OF OPPORTUNITY;

(IV) ANY LOSS OF DATA SUFFERED BY YOU; OR

(V) ANY INDIRECT OR CONSEQUENTIAL LOSSES WHICH MAY BE INCURRED BY YOU.

ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF:

ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICE;

ANY CHANGES WHICH WE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);

THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;

YOUR FAILURE TO PROVIDE US WITH ACCURATE ACCOUNT INFORMATION; OR

YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.

PLEASE NOTE THAT WE ONLY PROVIDE OUR PLATFORM FOR DOMESTIC AND PRIVATE USE. YOU AGREE NOT TO USE OUR PLATFORM FOR ANY COMMERCIAL OR BUSINESS PURPOSES, AND WE HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY.

IF DEFECTIVE DIGITAL CONTENT THAT WE HAVE SUPPLIED DAMAGES A DEVICE OR DIGITAL CONTENT BELONGING TO YOU AND THIS IS CAUSED BY OUR FAILURE TO USE REASONABLE CARE AND SKILL, WE WILL EITHER REPAIR THE DAMAGE OR PAY YOU COMPENSATION. HOWEVER, WE WILL NOT BE LIABLE FOR DAMAGE THAT YOU COULD HAVE AVOIDED BY FOLLOWING OUR ADVICE TO APPLY AN UPDATE OFFERED TO YOU FREE OF CHARGE OR FOR DAMAGE THAT WAS CAUSED BY YOUR FAILURE TO CORRECTLY FOLLOW INSTALLATION INSTRUCTIONS OR TO HAVE IN PLACE THE MINIMUM SYSTEM REQUIREMENTS ADVISED BY US.

THESE LIMITATIONS ON OUR LIABILITY TO YOU SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

YOU ARE RESPONSIBLE FOR ANY MOBILE CHARGES THAT MAY APPLY TO YOUR USE OF OUR SERVICE, INCLUDING TEXT-MESSAGING AND DATA CHARGES. IF YOU’RE UNSURE WHAT THOSE CHARGES MAY BE, YOU SHOULD ASK YOUR SERVICE PROVIDER BEFORE USING THE SERVICE.

TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICES, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE US AND OUR AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

11. Dispute Resolution

Dispute Resolution; Mandatory Arbitration. Please read this Arbitration Agreement carefully. It is part of your contract with BrainCo and affects your rights. It contains procedures for mandatory binding arbitration and a class action waiver.

11.1. Applicability of Arbitration Agreement

All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or Service provided by BrainCo that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and BrainCo, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.

11.2. Notice Requirement and Informal Dispute Resolution

Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to BrainCo should be sent to: 120 Beacon Street, Suite 201, Somerville, MA 02143, USA. After the Notice is received, you and BrainCo may attempt to resolve the claim or dispute informally. If you and BrainCo do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

11.3. Arbitration Rules

Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

11.4. Additional Rules for Non-Appearance Based Arbitration

If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

11.5. Time Limits

YOU AND BRAINCO AGREE THAT YOU MUST INITIATE ANY PROCEEDING OR ACTION WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE THAT IS ARISING OUT OF OR RELATED TO THESE TERMS. OTHERWISE, YOU FOREVER WAIVE THE RIGHT TO PURSUE ANY CLAIM OR CAUSE OF ACTION, OF ANY KIND OR CHARACTER, BASED ON SUCH EVENTS OR FACTS, AND SUCH CLAIM(S) OR CAUSE(S) OF ACTION ARE PERMANENTLY BARRED.

11.6. Authority of Arbitrator

If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and BrainCo, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and BrainCo.

11.7. Waiver of Jury Trial

THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and BrainCo in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND BrainCo WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

11.8. Waiver of Class or Consolidated Actions

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

11.9. Confidentiality

All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

11.10. Right to Waive

Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

11.11. Survival of Agreement

This Arbitration Agreement will survive the termination of your relationship with BrainCo.

11.12. Small Claims Court

Notwithstanding the foregoing, either you or BrainCo may bring an individual action in small claims court.

11.13. Emergency Equitable Relief

Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

11.14. Claims Not Subject to Arbitration

Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.

11.15. Courts

In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Suffolk County, Massachusetts, for such purpose.

12. Other Terms

12.1. Entire Agreement

These Terms constitute the whole legal agreement between you and BrainCo and govern your use of the Services and completely replace any prior agreements between you and BrainCo in relation to the Services.

12.2. No Waiver

Our failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right.

12.3. Security

We do not guarantee that our Services will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programmes and platform to access our Services. You should use your own virus protection software.

12.4. Severability

If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.

12.5. California Consumer Rights Notice

Under California Civil Code Section 1789.3, California users of the Services receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at the contact information set forth at https://www.dca.ca.gov/about_us/contactus.shtml.

Users of the Services who are California residents and are under 18 years of age may request and obtain removal of User Content they posted by contacting us by sending your request to the email address provided in the “Contact Us” section below. All requests must be labeled “California Removal Request” on the email subject line. All requests must provide a description of the User Content you want removed and information reasonably sufficient to permit us to locate that User Content. We do not accept California Removal Requests via postal mail, telephone or facsimile. We are not responsible for notices that are not labeled or sent properly, and we may not be able to respond if you do not provide adequate information.

12.6. Exports

You agree that you will not export or re-export, directly or indirectly the Services and/or other information or materials provided by Zentopia hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.

12.7. U.S. Government Restricted Rights

The Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

12.8. Force Majeure

The Zentopia Services may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. BrainCo is not responsible for any delays, deliver failures, or other damage resulting from such problems. In addition, neither you nor BrainCo will be liable for any failure or delay in performance of these Terms which are caused by something that is in the control of third parties or circumstances beyond the reasonable control of a party (collectively, “Force Majeure”). Force Majeure events shall include (but not be limited to) acts of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment, software or services (including the internet and telecommunication services); or material or something else required for the performance of obligations under these Terms. Notwithstanding the forgoing, under no circumstances will a party’s obligation to pay any amount under these Terms be obviated by an event of Force Majeure.

13. Contact Us

Questions, comments and requests regarding this Terms of Service should be addressed to:

· Email: general@brainco.tech

· Mailing Address: 120 Beacon St, STE 201, Somerville, MA, 02143 USA