brainCloud Terms of Service
Version 1 (April 29, 2015)
Section 1 – Agreement and brainCloud Services
- By clicking on the “Sign Up” button on our account sign-up page, you agree that you have read, understand, and accept the terms and conditions described below (the “Terms of Service”), that, in the case of a corporation that intends to use the brainCloud Services (defined below), you have the authority to bind the corporation, (hereinafter the corporation and you are referred to using “You” or “Your”) and You agree to be bound by these Terms of Service and all terms, policies and guidelines incorporated in the Terms of Service by reference.
- Your use of the brainCloud Services is governed by these Terms of Service and is an agreement made between You and bitHeads Inc. and its subsidiaries and affiliates, headquartered at 1309 Carling Avenue, Ottawa, Canada, K1Z 7L3 (“brainCloud”). You understand and agree that brainCloud will treat your use of the brainCloud Services as acceptance of these Terms of Service. If You do not agree to these Terms of Service, including agreeing to and accepting the terms and conditions relating to usage and potential Fees (defined below) You should not use the brainCloud Services. You agree that your purchases of brainCloud Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written statements made by brainCloud, brainCloud staff or any affiliates.
- brainCloud will make available through its website, including this website, the brainCloud cloud computing platform, the brainCloud API, the brainCloud add-ons, and any other software or services offered by brainCloud in connection to any of those (the “brainCloud Services”).
- You may not use the brainCloud Services if you are a person barred from receiving the brainCloud Services under the laws of Canada or other countries, including the country in which you are resident in or from which you use the brainCloud Services. You affirm that you are over the age of 18, as the brainCloud Services may not be used by children under 18.
- You must provide accurate and complete registration information any time you register to use the brainCloud Services. You are responsible for the security of your passwords and for any use of Your account. If you become aware of any unauthorized use of Your password or of Your account, you agree to notify brainCloud immediately.
Section 2 – Use of the brainCloud Services
- You may use the brainCloud Services only to develop and run applications on the brainCloud infrastructure. You may not access the brainCloud Services for the purpose of bringing an intellectual property infringement claim against brainCloud or for the purpose of creating a product or service competitive with the brainCloud Services.
- You agree not to access (or attempt to access) the administrative interface of the brainCloud Services by any means other than through the interface that is provided by brainCloud in connection with the brainCloud Services, unless you have been specifically allowed to do so in a separate agreement with brainCloud; or engage in any activity that interferes with or disrupts the brainCloud Services (or the servers and networks which are connected to the Service). Your use of the brainCloud Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
Section 3 – Service Policies and Privacy
These Terms of Service incorporate the following policies by reference, below (the “Policies”). brainCloud may update or revise these Policies from time to time and you acknowledge that it is your obligation to review such Policies from time to time and to understand their contents.
- You agree to comply with the brainCloud Acceptable Use Policy (the “Acceptable Use Policy”) available at http://getbraincloud.com/acceptable-use-policy.
- You agree that you will protect the privacy and legal rights of the end users of Your Application (“End Users”). You must provide legally adequate privacy notice and protection for End Users. If End Users provide you with user names, passwords, or other login information or personal information, you must make the End Users aware that the information will be available to your Application and to brainCloud.
Section 4 – Fees for Use of the brainCloud Services
- Subject to these Terms of Service, the brainCloud Services are provided to you without charge up to certain usage limits. Usage beyond such limits requires your purchase of additional resources or services (the “Fees”). The pricing for additional resources and services can be found at http://getbraincloud.com/pricing. You may not develop multiple Applications to simulate or act as a single Application or otherwise use or access the brainCloud Services in any manner intended to avoid incurring fees.
- For all purchased resources and services, we will charge your credit card for the Fees on a monthly basis or at the interval indicated in the brainCloud fees and payment policies, if different. All advertised prices are exclusive of taxes. By using the brainCloud Services, you hereby authorize brainCloud or its designated payment processor to withdraw the amount of the unpaid balance from the credit card You have provided. You also authorize the financial institution issuing the credit card to charge Your account for the amounts related to the brainCloud Services. This authorization will be valid until an authorized person on Your account asks brainCloud to suspend the automatic debit and/or the brainCloud Services.
- Late payments of Fees may bear interest at the rate of 2.0% per month (or the highest rate permitted by applicable law, if less). You are responsible for paying all applicable taxes and government charges, and You agree to indemnify brainCloud for all reasonable expenses, including legal fees, that brainCloud may incur collecting late Fees from You. Unless otherwise prohibited by law, charges made by brainCloud will become final and binding sixty (60) days after issuance and all disputes or claims related to such charges must be brought prior to the end of such period. For greater certainty, this does not affect your credit card issuer rights.
- You understand and agree that brainCloud Service will be interrupted on past due accounts after a seventy two (72) hour notification period. brainCloud Service that has been interrupted for nonpayment will be subject to a $25 reconnect charge. Accounts that are not collectible by brainCloud may be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay the company a “Processing and Collection” fee. If you desire to cancel your account, please e-mail customer support at firstname.lastname@example.org.
- Charges are solely based on brainCloud’s measurements of your use of the brainCloud Services, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of brainCloud and only in the form of credit for the brainCloud Services. Nothing in these Terms of Service obligates brainCloud to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to brainCloud may be shared by brainCloud with companies who work on brainCloud’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to brainCloud and servicing your account. brainCloud may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. brainCloud shall not be liable for any use or disclosure of such information by such third parties. brainCloud reserves the right to discontinue the provision of the brainCloud Services to you for any late payments, breaches or anticipated breaches by you of these Terms of Service.
- brainCloud may change its fees and payment policies for the brainCloud Services by notifying you at least thirty (30) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website (or such other URL brainCloud may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination under the Terms of Service for any reason.
Section 5 – Content and Take Down Obligations
- You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which You may have access as part of, or through Your use of, the brainCloud Services are the sole responsibility of the person from which such content originated (the “Content”, as further defined below).
- The term Content shall specifically exclude the application that you create using the brainCloud Services and any source code written by you to be used with the brainCloud Services (collectively, “Applications”).
- brainCloud reserves the right (but shall have no obligation) to remove any or all Content from the brainCloud Services. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take down request from brainCloud. In the event that you elect not to comply with a request from brainCloud to take down certain Content, brainCloud reserves the right to directly take down such Content or to disable Applications.
- In the event that you become aware of any violation of the Acceptable Use Policy by an End User of Applications, you shall immediately terminate such end user’s account on your Application. brainCloud reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.
- You agree that You are solely responsible for (and that brainCloud has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the brainCloud Services and for the consequences of your actions (including any loss or damage which brainCloud may suffer) by doing so.
- You agree that brainCloud has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the brainCloud Services. You further acknowledge that you are solely responsible for securing and backing up your Applications and any Content.
- Under no circumstances will brainCloud be obligated to provide insurance coverage for any data owned by the customer and hosted by brainCloud Service.
Section 6 – Intellectual Property Rights
- You acknowledge and agree that brainCloud (or brainCloud’s licensors) own all legal right, title and interest in and to the brainCloud Services, including any intellectual property rights which subsist in the brainCloud Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
- Except as provided in Section 8, brainCloud acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms of Service in or to any Content or Applications that you create, submit, post, transmit or display on, or through, the brainCloud Services, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with brainCloud, you agree that you are responsible for protecting and enforcing those rights and that brainCloud has no obligation to do so on your behalf.
Section 7 – License from brainCloud and Restrictions
- brainCloud grants you a revocable, personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by brainCloud as part of the brainCloud Services as provided to you by brainCloud. This license is for the sole purpose of enabling you to use and enjoy the benefit of the brainCloud Services as provided by brainCloud, in the manner permitted by the Terms of Service.
- You may not (and you may not permit anyone else to): (i) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the brainCloud Services or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by brainCloud, in writing (e.g., through an open source software license); (ii) attempt to disable or circumvent any security mechanisms used by the brainCloud Services or any applications running on the brainCloud Services; or (iii) use the brainCloud Services in any way that may subject brainCloud or the brainCloud Services to any obligations under any open source software license, including, without limitation any license which imposes any obligation or restriction with respect to brainCloud’s patent or other intellectual property rights in the brainCloud Services.
- Open source software licenses for components of the brainCloud Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms of Service, the open source licenses govern your agreement with brainCloud for the use of the components of the brainCloud Services released under an open source license.
Section 8 – Limited License from You
- brainCloud claims no ownership or control over any Content or Application. You retain copyright and any other rights You already hold in the Content and/or Application, and You are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the brainCloud Services You give brainCloud a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling brainCloud to provide You with the brainCloud Services. Furthermore, by creating an Application through use of the BrainCloud Services, You give brainCloud a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling brainCloud to provide You with the brainCloud Services.
- By adding a collaborator to your Application, You hereby grant to that user a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze such Application(s) and Content as permitted by the relevant brainCloud Services functionality or features for the sole purpose of collaborating on development of the Application(s).
- You may choose to or we may invite You to submit comments or ideas about the brainCloud Services, including without limitation about how to improve the brainCloud Services or our products (“Ideas”). By submitting any Ideas, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place brainCloud under any fiduciary or other obligation, and that we are free to use the Ideas without any additional compensation to You, and/or to disclose the Ideas on a non-confidential basis or otherwise to anyone.
- You agree that brainCloud, in its sole discretion, may use Your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the brainCloud Services.
Section 9 – Modification and Termination of the brainCloud Services
- brainCloud is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the brainCloud Services which brainCloud provides may change from time to time without prior notice to you, subject to the terms in Section 4(f). Changes to the form and nature of the brainCloud Services will be effective with respect to all versions of the brainCloud Services; examples of changes to the form and nature of the brainCloud Services include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.
- You may terminate these Terms at any time by canceling Your account on the brainCloud Services. You will not receive any refunds if you cancel your account.
- You agree that brainCloud, in its sole discretion and for any or no reason, may terminate your account or any part thereof based on the Acceptable Use Policy. You agree that any termination of your access to the brainCloud Services may be without prior notice, and you agree that brainCloud will not be liable to you or any third party for such termination.
- You are solely responsible for exporting your Content and Application(s) from the brainCloud Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).
- Upon any termination of the brainCloud Services or your account the terms of the Terms of Service will also terminate, but Sections 6(a), 9, 10, 11, 12 and 16 shall continue to be effective after the Terms of Service have terminated.
Section 10 – Exclusion of Warrantees
NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT BRAINCLOUD’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE BRAINCLOUD SERVICE IS AT YOUR SOLE RISK AND THAT THE BRAINCLOUD SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
BRAINCLOUD, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE BRAINCLOUD SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BRAINCLOUD, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE BRAINCLOUD SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE BRAINCLOUD SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE BRAINCLOUD SERVICES WILL BE ACCURATE.
Section 11 – Limitation OF Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT BRAINCLOUD, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
THE LIMITATIONS ON BRAINCLOUD’S LIABILITY TO YOU SHALL APPLY WHETHER OR NOT BRAINCLOUD HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
Section 12 – Indemnification
You agree to hold harmless, defend and indemnify brainCloud, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively “brainCloud and Partners”) from and against any third party claim arising from or in any way related to (a) Your breach of the Terms, (b) Your use of the brainCloud Services, (c) Your violation of applicable laws, rules or regulations in connection with the brainCloud Services, or (d) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, brainCloud will provide You with written notice of such claim, suit or action.
Section 13 – Copyright Infringement Policy
You agree to set up a process to respond to notices of alleged infringement that comply with all applicable laws. It is brainCloud’s policy to respond to copyright infringement notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid copyright infringement notice.
Section 14 – Other Content
The brainCloud Services may include hyperlinks to other web sites or content or resources or e-mail content. brainCloud may have no control over any web sites or resources which are provided by companies or persons other than brainCloud. You acknowledge and agree that brainCloud is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources. You further acknowledge and agree that brainCloud is not liable for any loss or damage which may be incurred by You or Your End Users as a result of the content or availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
Section 15 – Changes to Terms of Service
brainCloud may make changes to the Terms of Service from time to time. If brainCloud changes the Terms of Service in any substantive way, we will give you at least thirty (30) days notice before the changes take effect, during which period of time you may reject the changes by terminating your account. You understand and agree that if you use the brainCloud Services after the date on which the Terms of Service have changed, brainCloud will treat your use as acceptance of the updated Terms of Service.
Section 16 – General Legal Terms
- Except to the extent You and brainCloud have entered into a separate written agreement that is expressly intended to supersede these Terms of Service either in whole or in part, the Terms of Service constitute the whole legal agreement between you and brainCloud and govern your use of the brainCloud Services (but excluding any services which brainCloud may provide to you under a separate written agreement), and completely replace any prior agreements between you and brainCloud in relation to the brainCloud Services.
- There are no third party beneficiaries to these Terms of Service. The parties are independent contractors, and nothing in these Terms of Service creates an agency, partnership or joint venture.
- If brainCloud provides You with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
- You agree that brainCloud may provide You with notices, including those regarding changes to the Terms of Service, by e-mail, regular mail, or postings on the brainCloud Services. By providing brainCloud your e-mail address, You consent to our using the e-mail address to send You any notices required by law in lieu of communication by postal mail.
- You agree that if brainCloud does not exercise or enforce any legal right or remedy which is contained in the Terms of Service (or which brainCloud has the benefit of under any applicable law), this will not be taken to be a formal waiver of brainCloud’s rights and that those rights or remedies will still be available to brainCloud.
- brainCloud shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
- The Terms of Service, and Your relationship with brainCloud under the Terms of Service, shall be governed by the laws of the Province of Ontario without regard to its conflict of laws provisions. You and brainCloud agree to submit to the exclusive jurisdiction of the courts of the Province of Ontario to resolve any legal matter arising from the Terms of Service.
- You may not assign any of Your rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of brainCloud (not to be unreasonably withheld).