Brimby™ Web Application Terms and Conditions

 

  1. Introduction

These Web Application Terms and Conditions (these “Terms and Conditions”) contained on this web application, shall govern your use of the Brimby, LLC (“Brimby™”) web application (the “WebApp”). You accept and acknowledge that the Terms and Conditions shall apply in full force and effect in the following situations:

    1. by using the WebApp, you expressly accept the Terms and Conditions contained herein in full. You must not use this WebApp, if you have any objection to any of the Terms and Conditions.

    2. you register as a Brimby™ member (“Member”) on the WebApp, which shall provide you with access to some or all of the WebApp’s content through mobile or desktops where the WebApp can be accessed, and that that will contain Brimby™’s proprietary software that is capable of collecting Personal Information about you and access to Brimby™ Services (defined below).

This WebApp is not for use by any minors (defined as those who are not at least 17 years of age), and you must not use this WebApp if you a minor.

The terms of the Brimby™ Privacy Policy (the “Privacy Policy”), other Brimby™ operating rules, policies, pricing structure (if any), and additional supplemental terms and conditions or documents that may be published by Brimby™ from time to time, are expressly incorporated herein by reference (all of which shall be collectively referred to as the “Agreement”). Capitalized terms not defined herein shall have the meanings set forth in the Privacy Policy. Please review the Agreement carefully.

YOU MUST AFFIRMATIVELY CONSENT TO USE OUR OFFERINGS, AND BY DOING SO, YOU CONSENT TO THESE TERMS AND CONDITIONS, INCLUDING OUR PRIVACY POLICY. IF YOU DO NOT AGREE TO OUR TERMS AND CONDITIONS, INCLUDING OUR PRIVACY POLICY, IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR OTHERWISE USE THE BRIMBY™ SERVICES, CONTENT (AS THAT TERM IS DEFINED BELOW),  OR THE WEBAPP IN ANY MANNER OR FORM WHATSOEVER.

  1. Description of Brimby™ Services

Subject to the Terms and Conditions of the Agreement, Members shall have access to the Brimby™ Services. The “Brimby™ Services” shall be defined as a comprehensive personal development tool for student-athletes through the use of a series of proprietary assessments, structured goal planning, performance tracking and reflection and evaluation prompts, and other resources that are designed to improve Member self-awareness. Once a user completes the initial assessment (the “Baseline Survey”), he/she may:

    1. Access all Brimby™ features including additional assessments, goal planning, performance tracking, recommendations, and prompts;
    2. Access resources and content created by Third-Party Providers (defined below), which shall include, without limitation, links to other websites; descriptions of content, short articles, videos, podcasts, books, activities and photos of external resources, including, without limitation, other apps which have been created by the Third-Party Providers (the “Third-Party Resources”); and
    3. Elect to connect with a partner (“Partner”).
  1. Scope of Agreement

You agree to the Terms and Conditions outlined in the Agreement with respect to your use of the Brimby Services, and the sharing of Personal Information collected by the WebApp, as set forth in the Privacy Policy under the Section titled “Use of Your Information”, use of the WebApp, and/or any other analyses, research, opinions, reports and/or other information provided by or through same (collectively, “Brimby™ Offerings”). This Agreement constitutes the entire and only agreement between you and Brimby™ with respect to your use of the Brimby™ Offerings and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to your use of the Brimby™ Offerings.  Brimby™ may, without notice, update, revise, or change the Agreement, and the scope and functionality of the Brimby™ Offerings, in whole or in part, at any time; provided, however, that any amendment or modification to the arbitration provisions, prohibition on class actions provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes that arose prior to the applicable amendment or modification. The latest Agreement will be posted on Brimby’s™ WebApp, and you should review the Agreement prior to using the Brimby™ Offerings. By your continued use of the Brimby™ Offerings, you hereby agree to comply with, and be bound by, all of the Terms and Conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, which shall be governed by the Dispute Resolution Provisions then in effect at the time of the subject dispute). Therefore, you agree that it is your sole responsibility to regularly check Brimby’s™ WebApp for any updates and/or changes. You understand and agree that Brimby™ is not responsible or liable in any manner whatsoever for your inability to use the Brimby™ Offerings, regardless of the reason.

  1. Connection with a Partner

In the event a Member elects to connect with a Partner for support in working towards goals in a similar category, Bribmy™ shall provide the name and email address of another Member who has expressed the desire for the same support.  All such contact shall be done outside of the WebApp or the Brimby™ Offerings.  You agree that Brimby™ may provide such contact information in the event you elect to connect with a Partner.  In no event shall Brimby™ be liable for any event that occurs between Partners, and the Members who choose to connect with a Partner for such support agree, jointly and severally, to hold Brimby™ harmless and indemnify Brimby™ from all costs and expenses, including attorney’s fees, that result from any claims, damages or other obligations that may be made against Brimby™ as a result of a Member connecting with a Partner. 

  1. Content

After completion of the Baseline Survey, Brimby™ will provide Members with access to the Third Party Resources, as well as content developed by Brimby™, including without limitation, surveys, goal planning, and other content that will assist the Member in using  Brimby’s™ WebApp. The content created by Brimby™ shall be referred to as the “Brimby™” Content. The Third-Provider Resources and the Brimby™ Content shall be collectively referred to herein as the “Content”),.  Brimby™ has no ownership interest in the Third-Party Resources.   Brimby™ has no control, either on its own, or through any license to use any of the Third-Party Resources, over the Third-Party Resources that are available on the WebApp and has no right or ability to update or modify the Third-Party Resources in any manner.  The Third-Party Providers are solely responsible for the accuracy, completeness, appropriateness or usefulness of the Third-Party Resources.  Brimby™ will provide short descriptions of the purpose of any particular link in Third-Party Resources; provided, however, that you agree that in no event shall Brimby™ be liable for any inaccuracy or incompleteness of such descriptions, nor shall Brimby™ have any obligation to monitor the content of such links to ensure the accuracy of such descriptions.  You should not rely on the descriptions of the data that the link points to that is provided by Brimby™, but you agree that it shall be your sole responsibility to determine the purpose of the information connected to the links. The Content should not necessarily be relied upon.  When using the WebApp, you acknowledge and agree that Brimby™ makes no representation or warranty that the Content is accurate, complete, up-to-date, appropriate or useful.  You also understand and agree that Brimby™ will not undertake and has no obligation or responsibility to undertake, the monitoring of any Third-Party Resources to determine if the Third-Party Resources are accurate, complete, up-to-date, appropriate or useful and you agree that Brimby™ shall in no event be liable to you or anyone claiming on your behalf, in connection with the Third Party Resources.  You may find certain Content on the WebApp to be outdated, harmful, inaccurate and or deceptive.  You agree that it is your sole responsibility to use caution, common sense and safety when using the Brimby™ Offerings.

If you would like to register a complaint, notify Brimby™ of a dispute, notify Brimby™ of inaccurate or misleading Content appearing on the Website or otherwise made available by and through the Brimby™ Offerings, please feel free to contact us at hello@brimby.com.

  1. No Medical or Psychiatric Advice

BRIMBY™ IS NOT A MEDICAL OR HEALTH SERVICES ORGANIZATION PROVIDER, AND WE DO NOT ENGAGE IN IDENTIFYING ANY PYSCHIATRIC ILLNESS, PATIENT DIAGNOSIS OR THE PRACTICE OF MEDICINE. BRIMBY’S™ WEBAPP CONTAINS INFORMATION AND RESOURCES THAT MAY BE HELPFUL FOR MAINTAINING MENTAL WELLNESS, HOWEVER THE WEBAPP, THE THIRD-PARTY RESOURCES,  THE BRIMBY™ CONTENT AND ANY OTHER COMPONENT OF THE BRIMBY™ OFFERINGS, ARE IN NO EVENT INTENDED TO BE MEDICAL OR PSYCHIATRIC ADVICE OR THERAPY AND SHALL NOT BE NOR IS IT INTENDED TO BE CONSIDERED AS A SUBSTITUTE FOR OBTAINING MEDICAL  AND/OR PSYCHIATRIC ADVICE FROM A LICENSED PROFESSIONALTHE WEBAPP, THE BRIMBY™ SERVICES AND ANY OTHER COMPONENT OF THE BRIMBY™ OFFERINGS ARE NOT, AND SHOULD NEVER BE, A SUBSTITUTE FOR THE ADVICE OF A LICENSED HEALTHCARE PROVIDER OR MEDICAL PROFESSIONAL. USE OF THE WEBAPP, THE BRIMBY™ SERVICES, OR ANY COMPONENT OF THE BRIMBY™ OFFERINGS DOES NOT ESTABLISH A DOCTOR-PATIENT RELATIONSHIP. ACCORDINGLY, WHILE COMMUNICATIONS BETWEEN YOU AND BRIMBY™ ARE COVERED BY OUR PRIVACY POLICY, THEY ARE NOT PROTECTED BY PHYSICIAN-PATIENT PRIVILEGE OR DOCTOR-PATIENT CONFIDENTIALITY. ALL CONTENT THAT IS MADE AVAILABLE BY AND THROUGH THE WEBAPP, THE BRIMBY™ SERVICES, OR ANY COMPONENT OF THE BRIMBY™ OFFERINGS SHOULD BE DISCUSSED AND CONFIRMED WITH YOUR PHYSICIAN, PSYCHIATRIST, THERAPIST OR OTHER HEALTHCARE PROVIDER BEFORE ADOPTING ANY WELLNESS PROGRAM, EXERCISE PROGRAM, OR OTHER TREATMENT, WHETHER OFFERED TROUGH THE WEBAPP, THROUGH THE BRIMBY™ SERVICES OR OTHERWISE. USE OF THE WEBAPP, THE BRIMBY™ SERVICES, OR ANY COMPONENT OF THE BRIMBY™ OFFERINGS AND CONTENT FEATURED THEREIN, IS AT YOUR OWN RISK. INFORMATION AND STATEMENTS REGARDING SOME OF THE PRODUCTS AND/OR SERVICES FEATURED BY AND THROUGH THE WEBAPP, THE BRIMBY™ SERVICES OR BRIMBY™ OFFERINGS, HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION AND ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR

PREVENT ANY DISEASE OR PYCHOLOGICAL DISORDER.

  1. Requirements for Members

    The Brimby™ Offerings are not available to:
    1. Any person that has previously been suspended or removed from the ability to use the WebApp or the Brimby™ Services; or
    2. ANY PERSONS UNDER THE AGE OF 17.
  1. Registration/Account

Potential users may register for membership or become Members through the athletic department of any university that makes the Brimby™ Offerings available to members of any of their athletic departments, including any coaches of such athletic departments.

Brimby™ reserves the right, in its sole discretion, to deny membership, as well as the Brimby™ Offerings, to anyone, for any reason whatsoever, as permitted by applicable law. The registration data that you must supply in order to obtain access to the Brimby™ Offerings as a Member shall include, without limitation: full name; e-mail address;  and username and password (collectively, “Registration Data”). You agree to provide true, accurate, current and complete Registration Data and to update your Registration Data as necessary to maintain it in an up to date and accurate fashion. Brimby™ will verify and approve all registrants in accordance with its standard verification procedures.

You can access your specific Member account on  Brimby’s WebApp using your username and password. You are responsible for maintaining the confidentiality of your Member account, username and password and for restricting access to your computer. You agree to accept sole responsibility for all activities that occur through use of your Member account, username and password.

We reserve the right to change, suspend, or terminate any account, including any feature, Content, or Brimby™ Service at any time for any reason. We may also place limitations on the use of certain Brimby™ Services, Content or features, and/or limit your access to parts of the WebApp, the Brimby™Services or any other component of the Brimby™ Offerings without notice or liability. Brimby™ shall in no event be liable under any legal or equitable theories to any Member or any other party as a result of such termination, suspension, limiting access or changes.

Brimby™ may reject your application and/or terminate your membership at any time and for any reason, in our sole discretion. Such reasons may include, without limitation: where Brimby™ believes that you are in any way in breach of the Agreement; or where Brimby™ believes that you are, at any time, conducting any unauthorized commercial activity by and through the Services.

  1. Restrictions

You agree to use the WebApp and/or Brimby™ Services in a manner consistent with any and all applicable laws, rules and regulations. In connection with your use of the WebApp and/or Brimby™Services, you agree not to:

    1. impersonate any person or entity;
    2. “stalk” or otherwise harass any person;
    3. engage in any unauthorized advertising or commercial solicitation of third parties;
    4. express or imply that any statements that you make are endorsed by Brimby™, without our specific prior written consent, which may be withheld in our sole and absolute discretion;
    5. harvest or collect personal information of other Members or other persons whether or not for commercial purposes, without their express written consent;
    6. use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the WebApp or its contents;
    7. post, distribute or reproduce in any way any copyrighted material, trademarks, service marks, trade secrets, patents, domain names, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights and providing such written consent to Brimby™;
    8. remove any copyright, trademark or other proprietary rights notices contained on the WebApp;
    9. interfere with or disrupt any of the Brimby™Services, the WebApp and/or the servers or networks connected to same;
    10. “frame” or “mirror” any part of the WebApp, without our prior written authorization;
    11. use metatags, code or other devices containing any reference to Brimby™, the Brimby™Services and/or the WebApp in order to direct any person to any other website for any purpose; and/or
    12. modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Brimby™ Services and/or the WebApp or any software used on or for the Brimby™Services and/or the WebApp.

Engaging in any of the aforementioned prohibited practices shall be deemed a breach of the Agreement and may result in the immediate termination of your membership without notice, in the sole discretion of Brimby ™. Brimby ™ reserves the right to pursue any and all legal remedies against Members that engage in the aforementioned prohibited conduct.

  1. Limited License

As a Member, you are granted a non-exclusive, non- transferable, revocable and limited license to access and use the Brimby™ Offerings and certain Content in accordance with this Agreement.  Brimby™ may terminate this license at any time for any reason, with or without cause in its sole discretion. Unless otherwise expressly authorized by Brimby ™ in writing, you may only use the Brimby ™ Offerings and Content for your own personal use. No part of the Brimby™ Offerings or Third-Party Provider Resources may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile , disassemble, reverse engineer or transfer the Brimby™ Offerings, Third-Party Provider Resources   and/or any portion thereof. You may not create any “derivative works” by altering any aspect of the Brimby™ Offerings and/or Third-Party Provider Resources. You may not use the Brimby™ Offerings and/or Third-Party Provider Resources in conjunction with any other third-party content. You may not use any automated means or form of scraping or data extraction to access, query or otherwise collect Content or other information from the WebApp. You may not exploit any aspect of the Brimby™ Offerings and/or Third-Party Provider Resources for any commercial purposes not expressly permitted by Brimby™. You further agree to indemnify and hold harmless Brimby™ for your failure to comply with this Section 10. Brimby™ reserves any rights not explicitly granted in the Agreement. YOU AGREE THAT BRIMBY™, IN ITS SOLE DISCRETION, MAY TERMINATE YOUR USE OF THE WEBAPP AND BRIMBY™ OFFERINGS, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, FOR LACK OF USE OR IF BRIMBY™ BELIEVES THAT YOU HAVE VIOLATED OR ACTED INCONSISTENTLY WITH THE LETTER OR SPIRIT OF THE TERMS AND CONDITIONS. BRIMBY™ MAY ALSO IN ITS SOLE AND ABSOLUTE DISCRETION AND AT ANY TIME DISCONTINUE PROVIDING THE WEBAPP AND BRIMBY™ OFFERINGS OR ANY PART THEREOF, WITH OR WITHOUT NOTICE. YOU AGREE THAT ANY TERMINATION OF YOUR ACCESS TO THE WEBAPP AND BRIMBY™ OFFERINGS UNDER ANY PROVISION OF THESE TERMS AND CONDITIONS MAY BE EFFECTED WITHOUT PRIOR NOTICE AND YOU ACKNOWLEDGE AND AGREE THAT BRIMBY™ MAY IMMEDIATELY DELETE ANY FURTHER ACCESS TOTHE WEBAPP OR BRIMBY™ OFFERINGS. FURTHER, YOU AGREE THAT BRIMBY™ SHALL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE BRIMBY™ OFFERINGS. THE TERMS AND CONDITIONS WILL CONTINUE TO APPLY TO YOUR PAST USE OF THE WEBAPP AND BRIMBY™ OFFERINGS.  TERMINATION OF YOUR ACCESS TO AND USE OF THE WEBAPP AND BRIMBY™ OFFERINGS SHALL NOT RELIEVE YOU OF ANY OBLIGATIONS ARISING OR ACCRUING PRIOR TO SUCH TERMINATION OR LIMIT ANY LIABILITY THAT YOU OTHERWISE MAY HAVE TO BRIMBY™.

  1. Proprietary Rights

All Third-Party Resources and other material posted or made available by and through the Brimby™ Offerings including, but not limited to, the design, selection, arrangement and coordination of such Brimby™ Offerings, is owned by Brimby™ or Brimby™ has been given permission by the applicable Third-Party Provider to use the Third-Party Resources and is protected under applicable copyright, trademark and other proprietary (including, but not limited to, intellectual property) rights. Except as expressly provided in the Agreement, no part of the Brimby™ Offerings and/or Third-Party Resources may be reproduced, recorded, retransmitted, sold, rented, broadcast, distributed, published, uploaded, posted, publicly displayed, altered to make new works, performed, digitized, compiled, translated or transmitted in any way to any other computer, website or other medium or for any commercial purpose, without Brimby™’s prior express written consent. Except as expressly provided in this Agreement, you are not granted any rights or license to patents, copyrights, trade secrets, rights of publicity, service marks or trademarks with respect to any of the Brimby™ Offerings, Third-Party Resources or any document, software, services or other materials viewed at or through same. Brimby™ reserves all rights not expressly granted in this Agreement. The “Brimby™” name and logo are trademarks of Brimby™. All custom graphics, icons and service names are trademarks and/or copyrights of Brimby™. All other trademarks are the property of their respective owners. The use of any Brimby™ trademarks, service marks, copyrights, patents, trade secrets, domain names, and/or other proprietary rights without Brimby’s™ express written consent is strictly prohibited.

  1. Bypassing or Disabling any Portion of the Brimby™ Offerings or Software

You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Brimby™ Offerings. You may not take any action that imposes an unreasonable or disproportionately large load on the Brimby™ Offerings infrastructure. If you bypass or disable any portion of the Brimby ™ Offerings or associated software including, without limitation, the blocking of Cookies or blocking the operation of any other Brimby™ systems, you are in violation of the Agreement and Brimby™ may suspend or terminate your use of the Brimby™ Offerings without notice or liability to you. Termination of your access to the Brimby™ Offerings will not excuse you from any criminal or other civil liability that may result from your actions.

  1. Indemnification

You agree to indemnify and hold Brimby™, any of its parents, subsidiaries and/or affiliates, and each of their respective members, officers, directors, employees, agents, co-branders, Third-Party Providers, content licensors and/or other partners, harmless from and against any and all claims, expenses (including reasonable attorneys’ fees), damages, suits, costs, demands and/or judgments whatsoever, made by any third-party due to or arising out of:

    1. your use of any of the Brimby™ Offerings;
    2. your breach of this Agreement;
    3. your violation of any rights of another individual and/or entity; and
    4. any dispute between you and any Member, Third-Party Provider or other third-party.

The provisions of this Section 13 are for the benefit of Brimby™, any of its parents, subsidiaries and/or affiliates, and each of their respective officers, directors, members, employees, agents, shareholders, licensors, suppliers and/or attorneys. Each of these individuals and entities shall have the right to assert and enforce these provisions directly against you on its own behalf.

  1. Disclaimer of Warranties

THE BRIMBY™ OFFERINGS, CONTENT AND/OR ANY OTHER BRIMBY™ PRODUCTS AND/OR SERVICES, ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, BRIMBY™ MAKES NO WARRANTY THAT THE BRIMBY™ OFFERINGS, CONTENT AND/OR ANY OTHER BRIMBY™ PRODUCTS AND/OR SERVICES:

  1. WILL MEET YOUR REQUIREMENTS;
  2. WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED;
  3. WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS OR DESTRUCTIVE PROGRAMS;
  4. WILL HAVE SECURITY METHODS EMPLOYED THAT WILL BE SUFFICIENT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF SAME, OR AGAINST INFRINGEMENT;
  5. WILL RESULT IN ANY SPECIFIC MENTAL HEALTH RESULTS, PSYCHIATRIC OR OTHER BENEFIT OR RELATED OUTCOME; AND/OR
  6. WILL BE ACCURATE OR RELIABLE. THE BRIMBY™ OFFERINGS, CONTENT AND/OR ANY OTHER BRIMBY™ PRODUCTS AND/OR SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.

BRIMBY™ WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET CONNECTION ASSOCIATED WITH THE WEBAPP. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BRIMBY™, ANY MEMBERS, THIRD-PARTY PROVIDERS OR OTHERWISE THROUGH OR FROM THE BRIMBY™ OFFERINGS AND/OR CONTENT, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

  1. Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT BRIMBY™ SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PAIN AND SUFFERING, PERSONAL INJURY/WRONGFUL DEATH, LOSS OF INCOME, LOSS OF CONSORTIUM, BUSINESS INTERRUPTION, OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, LOSS OF DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BRIMBY™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) OR ANY OTHER LEGAL OR EQUITABLE DAMAGES. TO THE FULLEST EXTENT PERMISSIBLE BY LAW. BRIMBY™ ALSO SHALL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY FOR:

  1. THE USE OR THE INABILITY TO USE THE BRIMBY™ OFFERINGS, CONTENT AND/OR ANY OTHER BRIMBY™ PRODUCTS AND/OR SERVICES;
  2. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND /OR ANY OTHER BRIMBY™ PRODUCTS AND/OR SERVICES PURCHASED OR OBTAINED FROM OR THROUGH THE BRIMBY™ OFFERINGS AND/OR CONTENT;
  3. THE FAILURE TO REALIZE ANY SPECIFIC MENTAL HEALTH RESULTS, PSYCHIATRIC OR OTHER BENEFIT OR RELATED OUTCOME; AND
  4. ANY OTHER MATTER RELATING TO THE BRIMBY™ OFFERINGS, CONTENT AND/OR ANY OTHER BRIMBY™ PRODUCTS AND/OR SERVICES.

THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, SECURITIES LAW VIOLATIONS, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MEDICAL AND OTHER MALPRACTICE, MISREPRESENTATION AND ANY AND ALL OTHER TORTS. YOU HEREBY RELEASE AND HOLD HARMLESS BRIMBY™ FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATION, THE MAXIMUM LIABILITY OF BRIMBY™ TO YOU UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF YOUR USE OF THE BRIMBY™ OFFERINGS, CONTENT AND/OR ANY OTHER BRIMBY™ PRODUCTS AND/OR SERVICES MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE ALLEGED CAUSE OF ACTION REGARDLESS OF THE APPLICABLE STATUTE OF LIMITATIONS. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND BRIMBY™. ACCESS TO THE BRIMBY™ OFFERINGS, CONTENT AND/OR ANY OTHER BRIMBY™ PRODUCTS AND/OR SERVICES WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS BRIMBY™’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

  1. Third Party Websites

The Brimby™ Offerings contain links to other websites on the Internet that are owned and operated by third parties, including Third-Party Providers. Brimby ™ does not control the information, products or services available on these third-party websites. The inclusion of links does not imply endorsement by Brimby ™ of the applicable website or any association with the website’s operators. Because Brimby ™ has no control over such websites and resources, you agree that Brimby ™ is not responsible or liable for the availability or the operation of such external websites, for any material located on or available from any such websites or for the protection of your data privacy by third parties. Any dealings with Third-Party Providers featured on the WebApp, including the payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the applicable Third-Party Provider. You further agree that Brimby ™ shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on or through any such site or any such dealings.

  1. Dispute Resolution Provisions

The Agreement shall be treated as though it were executed and performed in Ardmore, Pennsylvania, U.S.A. and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, U.S.A. (without regard to conflict of law principles).

Should a dispute arise concerning the Brimby™ Offerings, the Agreement or the breach of same by any party hereto the parties agree to submit their dispute for resolution by binding arbitration before the American Arbitration Association in Montgomery County, Pennsylvania, in accordance with the then current Commercial Arbitration rules of the American Arbitration Association; provided, however, that any claims, disputes, actions or proceedings by Brimby™ relating to its intellectual property rights and/or to prevent unfair competition, misappropriation of trade secrets, unauthorized access, industrial espionage, and or fraud (including computer fraud) may be brought in only in any state or federal court in the Commonwealth of Pennsylvania, U.S.A. and you knowingly and irrevocably consent to the exclusive jurisdiction and venue of such courts and you hereby knowingly waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.  You agree that service of process upon you shall be deemed proper if conducted in any manner permitted under the laws of the Commonwealth of Pennsylvania.

To the extent permitted by law, you agree that you will not join any arbitral claim with the claim of any other person or entity, and you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against Brimby™ and/or its employees, officers, directors, members, representatives and/or assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney’s fees and court costs that Brimby™ incurs in seeking such relief. You agree that provision preventing you from bringing, joining or participating in class action lawsuits:

  1. does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provide d above; and
  2. is an independent agreement. You may opt-out of these dispute resolution provisions by providing written notice to Brimby™ of your decision within thirty (30) days of the date that you first access the WebApp.  In the event you opt out of these dispute resolution provisions, you may no longer have the right to access the WebApp or the Brimby™ Offerings.

Brimby™ makes no claim that the WebApp or the Brimby™ Offerings may be lawfully viewed or that Content may be downloaded outside the U.S.A.  Access to the WebApp and Content and use of the Brimby™ Offerings may not be legal by certain persons or in certain countries. If you access the WebApp and use the Brimby™ Offerings from outside the U.S.A., you do so at your own risk, and you are responsible for compliance with the laws of your jurisdiction.  You shall defend and hold harmless Brimby™ for all costs, including attorney’s fees, in the event any claim is brought against it as a result of the viewing or downloading of Content outside the U.S.A. or for your use of the Brimby™ Offerings outside the U.S.A.

  1. Miscellaneous

Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. No waiver or failure to enforce any condition or provision of this Agreement shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by us in exercising any right, power, or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.

No agency or partnership relationship is created through operation of this Agreement. Headings used in this Agreement are for convenience only and have no legal or contractual significance. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors, heirs, and assigns of both parties, as the case may be. Brimby™ may assign this Agreement in whole or in part at any time without your consent. You may not assign or delegate any of your rights or obligations under this Agreement.

  1. Contact Us

In the event you need to contact us directly with any questions or comments you may have about the Agreement, the Brimby™ Offerings, the practices of Brimby™,or any other questions or comments please send an email to hello@brimby.com.  It is our policy to read every message sent and to respond as promptly as is practical to each one.  The information that is provided by you is used to respond to your questions or comments.

 

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