Last Updated: December 22, 2016
TERMS & CONDITIONS
OF THE BRAINWAVE POWER MUSIC APP
Welcome to Brainwave Power Music! Brainwave Power Music (“brainwavepowermusic.com”) provides our website located at www.brainwavepowermusic.com (BPM) (the “Site”) and our relaxation and self-improvement services accessible via our Site and our mobile device application. To make these Terms easier to read, the Site, our services and App are collectively called the “Services.” Please read these Terms of Service (the “Terms”) carefully because they govern your use of our Services.
Agreement to Terms
By using our Services, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Services.
Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you can’t use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services
You may use the Services only if you are 13 years or older and are not barred from using the Services under applicable law. To make a purchase via the Services (described in the Section titled “Purchases” below), you must be 18 years or older and capable of forming a binding contract.
Using the Services
Users of the App can also use the paid functionality of the Services to utilize the enhanced functionality of the Services, described in further detail under the Section titled “Purchases” below.
You understand and agree that the Services and any other information you learn from Brainwavepowermusic.com are not intended, designed, or implied to diagnose, prevent, or treat any condition or disease, to ascertain the state of your health, or to be a substitute for professional medical care. Not all activities described on the Services are suitable for everyone. Do not use the Services while driving, operating heavy machinery, or performing other tasks that require attention and concentration. You understand and agree that you are solely responsible for your use of the Services.
Brainwavepowermusic.com offers certain enhanced functionality of the Services in exchange for the payment of a one-time flat fee or a subscription rate. A description of features associated with this offering is available via the Services. If you choose to purchase the enhanced offering via the App, you agree to pay the applicable fee and any taxes, and the fee will be charged to your account with the app store or distribution platform (like the Apple App Store or Google Play) where the App is made available (each, an “App Provider”). All fees are non-refundable and non-transferable except as expressly provided in these Terms.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at email@example.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicenseable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Content and Content Rights
For purposes of these Terms, “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services.
Brainwavepowermusic.com and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Subject to your compliance with these Terms, Brainwavepowermusic.com grants you a limited, non-exclusive, non-transferable, non-sublicenseable license to download, view, copy and display the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
Rights and Terms for Apps
Rights in App Granted by Brainwavepowermusic.com
Subject to your compliance with these Terms, Brainwavepowermusic.com grants you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the Brainwave App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. Brainwavepowermusic.com reserves all rights in and to the App not expressly granted to you under these Terms.
Additional Terms for App Store Apps:
If you download the App through or from any App Provider, then you acknowledge and agree that:
These Terms are concluded between you and Brainwavepowermusic.com, and not with the App Provider, and that Brainwavepowermusic.com (not the App Provider), is solely responsible for the App.
The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Brainwavepowermusic.com.
The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection and/or similar legislation.
In the event of any third-party claim that the App or your possession and/or use of that App infringes that third party’s intellectual property rights, Brainwavepowermusic.com will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
The App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the App, and that, upon your acceptance of the terms and conditions of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
You must also comply with all applicable third-party terms of service when using the App.
You agree to comply with all foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws or regulations. By using the App you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means.
You agree not to do any of the following:
Use, display, mirror or frame the Services, or any individual element within the Services, Brainwavepowermusic.com name, any Brainwavepowermusic.com trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Brainwavepowermusic.com’s express written consent;
Access, tamper with, or use non-public areas of the Services, Brainwavepowermusic.com's computer systems, or the technical delivery systems of Brainwavepowermusic.com’s providers;
Attempt to probe, scan, or test the vulnerability of any Brainwavepowermusic.com system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Brainwavepowermusic.com or any of Brainwavepowermusic.com’s providers or any other third party (including another user) to protect the Services;
Attempt to access or search the Services or download Collective Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Brainwavepowermusic.com or other generally available third party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Brainwavepowermusic.com trademark, logo URL or product name without Brainwavepowermusic.com’s express written consent;
Use the Services for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms or our Acceptable Use Policy. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources
The Services and App may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. Upon any termination, discontinuation or cancellation of Services, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify and hold harmless Brainwavepowermusic.com and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Content or (ii) your violation of these Terms.
Limitation of Liability
NEITHER BRAINWAVEPOWERMUISC.COM NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BRAINWAVE POWER MUSIC HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE BRAINWAVE POWER MUSIC APP IS AN ENTRY LEVEL APPLICATION AND THEREFOR TAKES NO RESPONSIBILITY FOR ANY DAMAGES OR ISSUES YOU MAY HAVE WITH THE APPLICATION IN ANY WAY. WE WILL ALWAYS ATTEMPT TO RESOLVE ANY ISSUES.
IN NO EVENT WILL BRAINWAVEPOWERMUSIC.COM’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO BRAINWAVEPOWERMUSIC FOR USE OF THE SERVICES OR CONTENT OR FIFTY DOLLARS ($50), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO BRIANWAVEPOWERMUSIC.COM, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BRAINWAVE POWER MUSIC.COM AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate You and Brainwavepowermusic.com agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Brainwavepowermusic.com are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Brainwavepowermusic.com otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Notwithstanding the provisions of the “Modification” section above, if Brainwavepowermusic.com changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to Contact@brainwavepowermusic.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Brainwavepowermusic.com’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Brainwavepowermusic.com in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between Brainwavepowermusic.com and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Brainwavepowermusic.com and you regarding the Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Brainwavepowermusic.com’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Brainwavepowermusic.com may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Brainwavepowermusic.com under these Terms, including those regarding modifications to these Terms, will be given: (i) by Brainwavepowermusic.com via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Brainwavepowermusic.com’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Brainwavepowermusic.com. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact Brainwavepowermusic.com at firstname.lastname@example.org