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THIS SOFTWARE IS PROVIDED BY THEBRAIN TECHNOLOGIES CORPORATION. BY INSTALLING THIS SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ACCEPT THE TERMS OF THIS AGREEMENT, CLICK "NO" BELOW.
THIS AGREEMENT PERMITS YOU TO USE (i) a free, limited-use copy of PersonalBrain 2.0 for your own personal evaluation purposes; (ii) to purchase a licensed copy of PersonalBrain 2.0 and unlock its full functionality; or (iii) to obtain a promotional license to PersonalBrain 2.0. If you are acquiring a license to a free, limited-use copy of PersonalBrain 2.0, limitations will be placed on the softwareÆs functionality unless you register and pay for your copy of the software within 30 days. For example, you will not be able to create more than 100 items of information (referred to as "thoughts") in any single Brain. For more information, please see http://www.thebrain.com/purchase.
THIS SOFTWARE FOR PERSONAL USE ONLY. If you are interested in licensing PersonalBrain 2.0 for any other purpose, please contact us at info@thebrain.com.
THE SOFTWARE AND ITS ACCOMPANYING DOCUMENTATION ARE PROTECTED BY UNITED STATES AND INTERNATIONAL COPYRIGHT LAW, TRADEMARK LAW AND INTERNATIONAL TREATY AND ARE THE SUBJECT MATTER OF PATENTS AND PENDING PATENTS. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION OF THE SOFTWARE AND RELATED DOCUMENTATION MAY RESULT IN CIVIL AND/OR CRIMINAL PENALTIES.
INTRODUCTION. This Agreement is between TheBrain Technologies Corporation, a Delaware corporation ("TheBrain"), and you ("you") (including the company or enterprise you represent or which employs you), the user of PersonalBrain 2.0 only as authorized hereunder and the accompanying documentation (collectively "PersonalBrain"). This copy of PersonalBrain is intended for your personal use only. For information about site licenses, server software or development tools, please contact TheBrain at info@thebrain.com or (310) 656-8484.
Based on the foregoing and other good and valuable consideration, you agree:
1. LICENSE GRANT. Subject to the restrictions below, TheBrain grants you a personal, non-exclusive, non-transferable, royalty-free, revocable license (ôLicenseö) to use PersonalBrain for personal uses only. This license permits you to make up to two object code copies of PersonalBrain during the term of this Agreement, installed on up to two personal computers or archival digital storage devices, but for use only by you, and only on a single personal computer concurrently. You must reproduce on all copies of PersonalBrain the copyright, trademark and patent notices and other proprietary legends that appear on the original copy of PersonalBrain. This Agreement does not include any rights to receive maintenance in connection with PersonalBrain or updates of the software.
2. EVALUATION LICENSE. If you have downloaded an unregistered copy of PersonalBrain, your copy is intended for your personal evaluation use only during a 30-day trial period. Unless you pay for your copy of PersonalBrain following this trial period:
* You will be unable to merge or link multiple Brains together; and
* The amount of data that you will be permitted to publish may be smaller than the amount allotted to registered users of PersonalBrain.
After the conclusion of the 30-day trial:
* You will be unable to create more than 100 thoughts in any Brain; and
* You will receive a reminder to register and pay for your licensed copy whenever you switch from viewing one locally-stored Brain to another.
3. REGISTRATION. To remove these limitations, you must register and pay for your licensed copy of PersonalBrain. Users of unregistered copies of PersonalBrain are entitled to no services whatsoever, including without limitation technical advice or support. To register PersonalBrain and enjoy PersonalBrain's full functionality, please (i) click the ôPurchaseö button on your PersonalBrain; or (ii) visit the following link and follow the instructions provided: http://www.thebrain.com/purchase. Once you pay for your copy of PersonalBrain, you will receive a unique and secret serial number enabling you to unlock PersonalBrain's full functionality. The serial number you receive is a valuable trade secret belonging to TheBrain. You agree not to disclose that serial number to any other person under any circumstance.
4. NO IMPLIED LICENSE. You acknowledge that this License in no way shall be construed to provide an express or implied license to use, modify or improve any of TheBrainÆs copyrights, trademarks, trade secrets and/or patents.
5. RESTRICTIONS. PersonalBrain contains proprietary information, which is protected by a combination of copyright, trademark, patent, trade secret and/or other proprietary rights, and constitutes valuable property of TheBrain. You acknowledge that PersonalBrain is disclosed to you only for purposes consistent with the terms and conditions of this License and that you do not acquire any rights of ownership or title in PersonalBrain. You may not (i) translate, modify, disassemble, decompile or reverse-engineer PersonalBrain; (ii) rent, lease, loan, sell, sublicense, grant a security interest in, distribute or otherwise transfer PersonalBrain to any third party; (iii) make any copy of PersonalBrain except for a single working copy stored on a single personal computer and a single copy for back-up purposes only; (iv) create derivative works of PersonalBrain, except in accordance with this Agreement; or (v) remove any copyright, patent, trademark or other proprietary notice or label from PersonalBrain or any accompanying documentation or materials.
6. OWNERSHIP. TheBrain owns all right, title and interest in and to all Intellectual Property Rights subsisting in PersonalBrain and all portions thereof. For purposes of this Agreement, "Intellectual Property Rights" means any and all rights affecting intellectual or industrial property existing now or in the future in the United States or anywhere in the universe. Intellectual Property Rights include, without limitation, any and all rights (i) under the laws of copyright, patent, trade secret, trademark, trade dress, unfair competition, "droit moral" or moral rights, or other similar laws; (ii) of publicity or privacy; (iii) relating to the development and use of databases, or know-how; and (iv) subsisting in any and all applications, registrations, renewals, extensions, restorations, continuations, divisionals, or foreign counterparts of any of the foregoing. THEBRAIN« and PERSONALBRAINΣ are trademarks or registered trademarks of TheBrain. Unauthorized copying of PersonalBrain will cause TheBrain great and irreparable harm. TheBrain is entitled to receive immediate equitable relief from any court of competent jurisdiction to prevent or stop your threatened or actual infringement of any of those rights.
7. MAINTENANCE SERVICES. You will receive technical support via electronic mail for the first 30 days following your download of PersonalBrain. Thereafter, you may continue to receive technical support via electronic mail and upgrades to PersonalBrain (collectively, ôMaintenance Servicesö) for an additional fee of $15 per year. You may receive technical support via telephone for an additional fee of $15 per telephone call.
8. DISCLAIMER OF WARRANTIES. All products and services relating to this Agreement ("Services") including, without limitation, PersonalBrain, TheBrain's Web site, and Maintenance Services are provided "AS IS," without warranty of any kind. THEBRAIN EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING PERSONALBRAIN, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, OR ANY WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD PARTY'S PATENT(S), TRADE SECRET(S), COPYRIGHT(S) OR OTHER INTELLECTUAL PROPERTY RIGHTS. THEBRAIN DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES. THEBRAIN DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN PERSONALBRAIN WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF PERSONALBRAIN WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN PERSONALBRAIN WILL BE CORRECTED. FURTHERMORE, THEBRAIN DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF PERSONALBRAIN IN TERMS OF ITÆS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THEBRAIN OR THEBRAIN'S AUTHORIZED REPRESENTATIVE SHALL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD PERSONALBRAIN PROVE DEFECTIVE, YOU (AND NOT THEBRAIN OR THEBRAIN'S AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
9. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL THEBRAIN BE LIABLE FOR ANY LOST REVENUE OR PROFITS OR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE PERSONALBRAIN OR ANY SERVICES RELATING TO THIS AGREEMENT REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES AND EVEN IF THEBRAIN OR THEBRAIN'S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES 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. IN NO EVENT SHALL THEBRAIN'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT THEBRAIN RECEIVED FOR USE OF PERSONALBRAIN.
10. PRIVACY. TheBrain may collect information ("Consumer Information") about visitors to its Web site and their activities while visiting the Web site. TheBrain may use your Consumer Information to improve your experience with the Web site and TheBrain products and services. At your request, TheBrain will not disclose or sell your Consumer Information to any third party. TheBrain, however, may use your Consumer Information in the aggregate to compile demographic information for potential customers, business partners and advertisers. For more information on TheBrainÆs Privacy Policy, please see www.thebrain.com/legal/default.html.
11. TERMINATION. This Agreement will commence upon installation of PersonalBrain. Your rights under Section 1 and/or 2 will immediately and automatically terminate upon your breach of any provision of this Agreement, at which time you must return to TheBrain or destroy all copies of PersonalBrain in your possession.
12. GOVERNMENT LICENSEE. If PersonalBrain is licensed by or for any unit or agency of the United States Government, then PersonalBrain will be classified as "commercial computer software", as that term is defined in the applicable provisions of the Federal Acquisition Regulation (the "FAR") and supplements, including the Department of Defense ("DoD") FAR Supplement (the "DFARS"). PersonalBrain was developed exclusively at private expense, and no part of PersonalBrain was first produced in the performance of a United States Government contract. If PersonalBrain is supplied for use by DoD, PersonalBrain is delivered subject to the terms of this Agreement and either (i) in accordance with DFARS 227.7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS 252.227-7013(c) (Nov. 1995), as applicable. If PersonalBrain is supplied for use by a Federal agency other than DoD, PersonalBrain is restricted computer software delivered subject to the terms of this Agreement and (i) FAR 12.212; (ii) FAR 52.227-19; or (iii) FAR 52.227-14, as applicable.
13. GOVERNING LAW. This Agreement and any claim or cause of action arising under or related to this Agreement in any way shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. In connection with any claim or cause of action that arises under or is related to this Agreement in any way, you hereby consent to the personal and exclusive jurisdiction and venue of the state and federal courts and/or arbitral fora located in Los Angeles County of the State of California.
14. SEVERABILITY. To the extent that any of the provisions of this Agreement, or any word, phrase, clause, or sentence thereof, is found to be illegal or unenforceable for any reason, that provision, word, phrase, clause, or sentence will be reformed or deleted only to the extent necessary to make this Agreement as reformed legally enforceable. That reformation or deletion will not affect the balance of the provisions or parts of this Agreement, which are to be construed as severable and independent.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes any and all written or oral agreements previously existing between the parties with respect to such subject matter. No delay on the part of TheBrain in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any waiver on the part of TheBrain of any right preclude any other or further exercise of any right under this Agreement.
BY CLICKING "YES" BELOW, YOU ACKNOWLEDGE THAT YOU (I) HAVE READ THIS AGREEMENT, UNDERSTAND IT, (II) HAVE ALL RIGHT POWER AND AUTHORITY TO BIND YOURSELF, INCLUDING YOUR COMPANY OR ENTERPRISE TO IT, AND (III) AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
