Terms of use
IMPORTANT: PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING OR USING THE SERVICE (DEFINED BELOW), YOU AGREE TO BE BOUND BY THESE TERMS OF USE, INCLUDING THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER IN SECTION 12, WHICH REQUIRE YOU TO RESOLVE MOST DISPUTES WITH US THROUGH INDIVIDUAL ARBITRATION AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF. BY ACCEPTING THESE TERMS, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS (INCLUDING THE ARBITRATION AGREEMENT) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT PERMITTED TO ACCESS OR USE THE SERVICE.
THE DEVICE (DEFINED BELOW) IS AN INVESTIGATIONAL RESEARCH DEVICE. IT HAS NOT BEEN CLEARED, APPROVED, OR AUTHORIZED BY THE U.S. FOOD AND DRUG ADMINISTRATION OR ANY OTHER REGULATORY AUTHORITY, IS NOT AVAILABLE FOR SALE, AND MUST NOT BE USED TO DIAGNOSE, TREAT, MONITOR, OR MAKE CLINICAL DECISIONS ABOUT ANY PERSON.
These Terms of Use, together with any documents they incorporate by reference (collectively, these “Terms”), govern your access to and use of the website located at brillneurotech.com and its subdomains (the “Site”), the Brill wearable optical brain-imaging headset and its firmware (each, a “Device”), any associated software, applications, dashboards, application programming interfaces, and cloud platform (the “Platform”) , and any other products, services, or information provided by or on behalf of Brill Neurotech, Inc. (“Brill,” “Company,” “we,” “us,” or “our”) that reference or link to these Terms (together with the Site, the Device, and the Platform, collectively, the “Service”).
1. ACCEPTANCE OF TERMS; ELIGIBILITY
1.1 Binding Agreement. By accessing, browsing, or otherwise using the Service, or by clicking to accept or agree to these Terms where that option is made available, you acknowledge that you have read, understood, and agree to be bound by these Terms (which may be updated from time to time, as discussed below) and that you intend these Terms to be the legal equivalent of a signed, written contract. If you are accepting these Terms on behalf of a company, university, hospital, or other legal entity, you represent and warrant that (a) you are authorized to do so, (b) the entity agrees to be legally bound by these Terms, and (c) neither you nor the entity is barred from using the Service under Applicable Law (defined below).
1.2 Eligibility. By using the Service, you represent and warrant that: (i) you are at least eighteen (18) years of age and able to form legally binding contracts; (ii) all information you submit to Brill is truthful and accurate (and you will maintain the accuracy of such information); (iii) your use of the Service does not violate the laws of the United States, the laws of the jurisdiction in which you access the Service, or any other law, rule, regulation, administrative, judicial, or governmental order, or legal process (collectively, “Applicable Law”); and (iv) you are not a person or entity (“Person”) that is (a) the subject of economic or trade sanctions administered or enforced by any governmental authority, or designated on any list of prohibited or restricted parties by any governmental authority (including the European Union Consolidated List of Persons, the United Kingdom Consolidated List of Financial Sanctions Targets, the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, and the U.S. Department of Commerce Denied Persons List and Entity List); (b) located in, a resident of, or organized in any jurisdiction or territory subject to comprehensive country-wide or regional sanctions or designated as “terrorist supporting” by the United Nations or the governmental authority of the European Union, United Kingdom, or United States (currently including Cuba, Iran, North Korea, Syria, and the Crimea, so-called Donetsk People’s Republic, and so-called Luhansk People’s Republic regions of Ukraine), or the Russian Federation; or (c) owned or controlled by any Person described in (a) or (b). If you do not meet all of these requirements, you must not access or use the Service. No individual under the age of 18 may use the Service or provide us with any personal information. If we become aware that an individual under 18 may have provided us with personal information, we will investigate and, if applicable, take steps to remove that data.
2. DESCRIPTION OF PRODUCT AND SERVICES
2.1 The Site. The Site provides information about Brill, its technology, and career opportunities; allows you to subscribe to our newsletter, apply for open positions, and, where available, join our research interest list; and provides email links to Brill group addresses. The Site does not offer accounts, purchases, or downloads at this time.
2.2 The Device. The Device is under development and may include a wearable, non-invasive headset that uses near-infrared optical techniques (including fast optical signal and hemodynamic measurement) to record signals associated with brain activity. The Device is presently not intended to be offered for use or for sale.
2.3 Neural Data Transmission and the Platform. When in use, the Device may capture optical detector outputs and related technical data (such as timestamps, device identifiers, firmware versions, sensor placement, and signal-quality metrics) and may transmit them in real time or near-real time to connected computers and to Brill-controlled or Brill-approved storage, where the Platform may process them into derived signals, features, and model outputs (collectively, with all data captured by the Device, “Neural Data”). Neural Data may reveal or permit inferences about your physiological state, mental activity, or health. How Neural Data may be collected, coded, stored, used, shared, and retained, and your choices about it, will be described in our Privacy Policy and other documents provided to you prior to your receipt or use of any Device.
2.4 Changes and Availability. The Service is under active development. We may add, modify, suspend, or discontinue any feature at any time. The Service may be interrupted for maintenance, upgrades, or network or equipment failures, and we may restrict availability to maintain security or integrity.
3. ACCEPTABLE USE
3.1 Permitted Use. Subject to these Terms, Brill grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services for your personal, informational purposes.
3.2 No Clinical or Diagnostic Use. You will not, and will not permit any Person to, use the Service, or any output, visualization, report, score, or inference generated by the Service (“Outputs”): (a) to diagnose, screen for, cure, mitigate, treat, monitor, or prevent any disease, injury, or medical or psychiatric condition; (b) to make, inform, or support any clinical, treatment, triage, or patient-management decision; (c) as a substitute for any FDA-cleared, approved, or authorized device or for the judgment of a licensed healthcare professional; (d) to make decisions that produce legal or similarly significant effects on any individual, including decisions concerning employment, insurance, credit, housing, education, legal proceedings, or access to essential services; (e) to infer or attempt to infer the thoughts, intentions, emotions, truthfulness, or mental state of any person without that person’s informed, express consent; or (f) for any law enforcement, surveillance, interrogation, or lie-detection purpose.
3.3 Prohibited Conduct. In connection with the Service, you will not, and will not permit or assist any third party to: (a) violate any Applicable Law or use the Service for any unlawful, fraudulent, or unauthorized purpose; (b) copy, modify, distribute, sell, license, frame, mirror, or create derivative works from the Service or any Content (hereinafter defined); (c) decompile, disassemble, reverse engineer, or attempt to obtain the source code, firmware, gateware, or hardware design of the Service; (d) access the Service through bots, scripts, or other automated means, or scrape, crawl, or data mine the Service; (e) use the Service or any Content (including Neural Data and Outputs) to train, test, or refine any artificial intelligence model or system; (f) attempt to re-identify any individual from Content, or link Content with other data for that purpose; (g) attempt to gain unauthorized access to the Service or any connected systems, or probe, scan, or test the vulnerability of the Service; (h) upload or transmit any virus, malware, or other harmful code; (i) interfere with or impair the Service or any other user’s use of it; (j) submit any content that is unlawful, harassing, defamatory, obscene, or that infringes the rights of any Person; (k) transmit spam or other unsolicited solicitations; (l) impersonate any Person or misrepresent your affiliation; (m) export, re-export, or transfer the Service or any Content in violation of Applicable Laws, or provide access to them to any Person in a country of concern under the U.S. Department of Justice Data Security Program (28 C.F.R. Part 202); or (n) use the Service in any hazardous environment requiring fail-safe performance.
3.4 Do Not Send Sensitive Information Through the Site. Please do not send health information, Neural Data, biometric information, government identification numbers, or other sensitive personal information through the Services, our group email addresses, or job applications, unless we specifically request it through a secure channel designated for that purpose.
3.5 Monitoring and Enforcement. Brill may, but shall not be obligated to, review, monitor, or remove Content and User Data, at Brill’s sole discretion and at any time and for any reason, without notice to you. Brill may investigate any complaint or reported violation of these Terms or its policies and take any action that it deems appropriate in its sole and absolute discretion, including issuing warnings, suspending or terminating your use of all or any portion of the Service, and denying you access to all or any portion of the Service or any Content. Brill also reserves the right to report any activity that it suspects may violate any Applicable Law to appropriate law enforcement officials, regulators, or other Persons. In order to cooperate with governmental requests, to protect its systems and users, to ensure the integrity and operation of the Service, to comply with the requirements of Third Party Providers, or otherwise to comply with Applicable Law, Brill may access and disclose information, as described in the Privacy Policy and as permitted or required by Applicable Law.
3.6 Security. Brill will take commercially reasonable security precautions when using the Internet, telephone, or other means to transport data or other communications, but expressly disclaims any and all liability for the accessing of any such data or communications by unauthorized Persons.
4. INTELLECTUAL PROPERTY
4.1 Ownership of the Service. The Service and all materials made available on or through the Service, including all Output, the Device design, firmware, gateware, software, algorithms, models and model weights, documentation, text, images, illustrations, designs, and the “look and feel” of the Service (collectively, “Content”), together with all intellectual property rights in them, are owned by Brill or its licensors and are protected by copyright, patent, trademark, trade secret, and other Applicable Law. Brill reserves all rights not expressly granted in these Terms.
4.2 Trademarks. “Brill,” “Brill Neurotech,” and associated names, logos, and marks are trademarks of Brill. No license to any trademark or other intellectual property is granted by these Terms.
4.3 User Data. Brill, in its sole discretion, may permit you to submit, upload, transmit, publish, or otherwise make available information, comments, responses, ratings, reviews, questions, suggestions, messages, text, images, videos, feedback, communications, or other materials through the Service (collectively, “User Data”). By providing User Data, you grant Brill a worldwide, perpetual, irrevocable, transferable, non-exclusive, royalty-free license, with the right to sublicense, to use, copy, modify, transmit, adapt, reformat, reorganize, translate, excerpt, create derivative works of, distribute, publicly display, publicly perform, exploit (commercially or otherwise), and process such User Data in all formats and distribution channels now known or hereafter devised in connection with the Service, without further notice to or consent from you, and without the requirement of payment to you or any other Person. Notwithstanding the foregoing, we will not use the User Data in a manner inconsistent with our Privacy Policy. You acknowledge and agree that: (a) we have the right to arrange the posting of User Data in any way we desire; (b) we have no obligation to provide you with any credit when using your User Data; and (c) you are not entitled to any compensation or other payment from us in connection with the use of your User Data. You agree that you will respect the intellectual property rights of others. By providing User Data, you represent and warrant that you are the creator and owner of the User Data or that you otherwise have all the legal rights, permissions, and consents necessary to provide that User Data as contemplated by these Terms and to grant Brill the foregoing license. You also represent and warrant that your User Data and all other information provided to us does not infringe, misappropriate, or otherwise violate the intellectual property rights, privacy rights, or other proprietary rights of any third party.
4.4 Copyright Complaints (DMCA). If you believe content on the Service infringes your copyright, send our designated agent, at the notice address in Section 14.2, a notice containing: (i) a physical or electronic signature of the copyright owner or authorized agent; (ii) identification of the copyrighted work; (iii) identification of the allegedly infringing material and information reasonably sufficient to locate it; (iv) your contact information; (v) a statement of good-faith belief that the use is not authorized; and (vi) a statement, under penalty of perjury, that the notice is accurate and that you are authorized to act for the owner.
5. HEALTHCARE AND MEDICAL DEVICE DISCLAIMERS
5.1 Regulatory Status. No Service has been cleared, approved, authorized, or otherwise reviewed by the U.S. Food and Drug Administration (“FDA”) or any other regulatory authority for any diagnostic, therapeutic, monitoring, or other medical purpose, and the Service does not hold marketing authorization as a medical device in any jurisdiction. Brill does not represent that any Service is exempt from FDA regulation. Because the Device measures brain activity, it may meet the definition of a “device” under Section 201(h) of the Federal Food, Drug, and Cosmetic Act depending on its intended use, and its use in clinical investigations may be subject to FDA’s investigational device exemption regulations (21 C.F.R. Part 812) and human-subject protection and Institutional Review Board (“IRB”) regulations (21 C.F.R. Parts 50 and 56). The Device is not available for sale, and nothing on the Service is an offer to sell or a claim that the Device is safe or effective for any purpose.
5.2 Not Medical Advice; No Medical Results. The Service, including all Content, is provided for research, engineering, and informational purposes only. It is not a clinical decision support tool and is not a substitute for professional medical advice, diagnosis, or treatment. Research sessions do not produce medical results, and Brill personnel do not interpret Content for clinical care. Always seek the advice of your physician or other qualified healthcare provider with any question about a medical condition, and never disregard or delay seeking professional medical advice because of anything on the Service. You are solely responsible for all healthcare decisions you make, and you alone bear the sole responsibility of evaluating the merits and risks associated with using the Service and any Content. Brill does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Service, and Brill disclaims all liability and responsibility that may arise from any decision you make based upon the use of the Service or any Content.
5.3 No Provider Relationship. Brill is not a healthcare provider and does not provide medical services. Use of the Service, participation in research, or communication with Brill does not create a physician-patient or other healthcare provider relationship.
5.4 Emergencies. The Service does not monitor for and cannot detect medical emergencies. If you think you may have a medical emergency, call 911 or your local emergency number immediately. If you are experiencing thoughts of suicide or self-harm, call or text 988 (the Suicide & Crisis Lifeline) in the United States.
5.5 Health Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRILL MAKES NO REPRESENTATION OR WARRANTY THAT ANY CONTENT IS ACCURATE, COMPLETE, CURRENT, OR SUITABLE FOR ANY INDIVIDUAL’S HEALTH CIRCUMSTANCES AND IS NOT RESPONSIBLE FOR YOUR USE OF OR RELIANCE ON ANY CONTENT. YOU ACKNOWLEDGE AND AGREE THAT YOUR DECISION TO RELY ON AND/OR USE THE SERVICE OR ANY CONTENT IS AT YOUR SOLE RISK, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRILL WILL NOT BE LIABLE FOR ANY HEALTH OUTCOMES, ADVERSE EFFECTS, OR LOSS OR DAMAGE, INCLUDING PERSONAL INJURY AND DEATH, ARISING OUT OF OR IN CONNECTION WITH YOUR RELIANCE ON OR USE OF THE SERVICE OR ANY CONTENT.
6. HIPAA AND PROTECTED HEALTH INFORMATION
6.1 Brill’s Status. Brill is not a “covered entity” under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations at 45 C.F.R. Parts 160 and 164 (“HIPAA”), and data that Brill collects directly from you for its own research and product development is generally not “protected health information” (“PHI”) under HIPAA.
6.2 When Brill Acts as a Business Associate. If Brill creates, receives, maintains, or transmits PHI on behalf of a HIPAA covered entity or business associate (for example, a hospital, health system, or university health component that uses a Service with its patients or research subjects), Brill will do so only under a written business associate agreement (“BAA”) that complies with 45 C.F.R. §§ 164.314 and 164.504(e). The terms of the BAA control over these Terms as to that PHI.
6.3 Customer Obligations. Any business customer that intends to use the Service with PHI must notify Brill in writing and execute a BAA with Brill before any PHI is uploaded, transmitted, or otherwise made available to the Service. Absent an executed BAA, you must not provide PHI to Brill, and Brill does not agree to act as your business associate.
7. CONSUMER PROTECTION COMMITMENTS
7.1 Truthful Claims. Brill intends every statement it makes about the Service to be truthful, not misleading, and supported by competent and reliable evidence, consistent with Section 5 of the Federal Trade Commission Act (15 U.S.C. § 45) and state consumer protection laws. Statements on the Service about the Device’s capabilities describe research goals and preliminary engineering results. They are not claims that the Device can read thoughts, diagnose or treat any condition, or perform any particular function outside a research setting.
7.2 California Consumer Notice. Under California Civil Code § 1789.3, California users may be entitled to 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 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
8. DISCLAIMERS OF WARRANTIES
8.1 High Risk Disclaimer. No Service is fault-tolerant and no Service is designed or intended for use in hazardous environments requiring fail-safe performance, such as any application in which the failure of a Service could lead to death, personal injury, or physical or property damage (collectively, “High-Risk Activities”). Brill expressly disclaims any express or implied warranty of fitness for High-Risk Activities.
8.2 Third-Party Services. In using the Service, you may have access to third-party information, products, services, and integrations (collectively, the “Third Party Materials”), which are independently provided and operated by the third-party owners, providers, or licensees thereof (collectively, “Third Party Providers”). Revoking permissions granted to Third Party Materials and/or Third Party Providers may affect certain features of the Service. In the event of a discontinuance or termination of our access to any Third Party Materials, we may in our sole discretion remove the applicable Third Party Materials from the Service or replace any such Third Party Materials with other Third Party Materials. The Third Party Materials are the property of the Third Party Providers or others and may be protected by copyright, patents, and other intellectual property rights. You acknowledge and agree that such Third Party Materials are subject to the additional terms, privacy policies, and other agreements (the “Third Party Terms”), for which we are not responsible. Brill does not endorse or warrant the accuracy, completeness, or security of any Third Party Materials. You agree not to use the Third Party Materials for any purpose other than use of the Services in compliance with these Terms and, in particular, not to (i) use the Third Party Materials for any unlawful purpose; (ii) download, modify, reproduce, retransmit, disseminate, sell, lease, distribute, publish, broadcast, circulate, or commercially exploit Third Party Materials in any manner; or (iii) furnish or otherwise permit or provide access to Third Party Materials to any Person other than in full compliance with these Terms and the applicable Third Party Terms. You agree to: (a) comply with all requests by us or any Third Party Provider to protect the Third Party Providers’ and our respective rights in Third Party Materials; and (b) take reasonable security precautions to prevent unauthorized access to any Third Party Materials or the Service. The Third Party Providers are third party beneficiaries under these Terms and shall be entitled (along with us or alone) to enforce these Terms by legal proceeding or otherwise for any violation hereof. Your obligations under this Section shall remain in effect after termination of these Terms. BRILL AND EACH THIRD PARTY PROVIDER EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY AND ALL SUCH THIRD PARTY MATERIALS, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND/OR NON-INTERFERENCE.
8.3 As Is. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND ALL CONTENT AND THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES CONCERNING THE AVAILABILITY, RELIABILITY, ACCURACY, COMPLETENESS, TIMELINESS, OR SEQUENCING OF THE SERVICE OR ANY CONTENT, AND ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, THIS DISCLAIMER APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY ASSET, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. BRILL DOES NOT WARRANT THAT ANY SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE, THE SERVERS ON WHICH IT IS HOSTED, OR ANY CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT DATA WILL BE CAPTURED OR TRANSMITTED COMPLETELY OR WITHOUT LOSS, OR THAT ANY OUTPUT WILL BE ACCURATE.
8.4 Links. If the Service contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Service, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
8.5 Interactions Through Services. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via third-party links or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements), payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Brill disclaims all liability in connection therewith. All disputes with third parties (including Third Party Providers), must be resolved directly with the applicable third party.
8.6 Required Connections and Devices. You must provide certain devices, software, and data connections, which Brill does not supply to use the Service. You are responsible for (i) obtaining the data network access necessary to use the Service; and (ii) acquiring and updating compatible hardware, software, equipment, and devices necessary to access and use the Service. Your third party service providers (including mobile network and Internet service providers) may charge, among other things, data and messaging fees based upon your access to or use of the Service. Brill does not guarantee that the Service, or any portion thereof, will function on, or be compatible with, any particular hardware, software, equipment, or device.
8.7 Jurisdictional Limits. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
9. LIMITATION OF LIABILITY
9.1 Exclusion and Cap. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BRILL, ANY THIRD PARTY PROVIDER, OR ANY OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, PARTNERS, MEMBERS, CONSULTANTS, ADVISORS, EMPLOYEES, AGENTS, CONTRACTORS, OR LICENSORS (THE “BRILL PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, DATA, BUSINESS, OR GOODWILL) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, OR ANY CONTENT OR INFORMATION OBTAINED OR STORED IN OR FROM, OR PROVIDED THROUGH, THE SERVICE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF A BRILL PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LIABILITY OF ANY BRILL PARTY ARISING OUT OF OR RELATING TO THE SERVICE, THESE TERMS, OR ANY CONTENT IN ANY CIRCUMSTANCE EXCEED ONE HUNDRED DOLLARS ($100).
9.2 Exclusions from the Limitation. NOTHING IN THESE TERMS EXCLUDES OR LIMITS LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
9.3 Time Limit for Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED.
10. INDEMNIFICATION
To the extent permitted by Applicable Law, you agree to indemnify, defend, and hold harmless the Brill Parties from and against any and all actions, causes of action, claims, demands, costs, liabilities, expenses (including reasonable attorneys’ fees and court costs), and damages based on, arising out of, or relating to: (i) any use of the Service or any Content by you or on your behalf, and any activities by you or on your behalf in connection with the Service or any Content; (ii) your breach or alleged breach of these Terms; (iii) your User Data (including Brill’s use and disclosure thereof); (iv) your violation of any Applicable Law or the rights of any third party; or (v) any misrepresentation made by you or on your behalf (all of the foregoing, “Claims”). Your obligations under this Section do not apply to the extent a Claim arises from the willful misconduct or violation of Applicable Law by a Brill Party. You will cooperate as required by the Brill Parties in the defense of any Claims. The Brill Parties retain the exclusive right to assume the exclusive defense and control of, including the right to settle, compromise, and pay, any and all Claims.
11. GOVERNING LAW AND VENUE
These Terms are governed by and construed in accordance with the laws of the State of Illinois and the United States of America, without giving effect to any principles of conflicts of law, and, as to Section 12, by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”). Subject to Section 12, you irrevocably consent to the exclusive jurisdiction of the state and federal courts located in the City of Chicago, County of Cook, State of Illinois, USA, for any action arising out of or relating to these Terms, the Service, or their subject matter, and you waive any objection based on lack of personal jurisdiction, place of residence, improper venue, or forum non conveniens in any such action. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms and is hereby expressly excluded. Nothing in this Section deprives you of the protection of any mandatory provision of the law of the state or country where you reside. These Terms shall not require arbitration of actions brought in small claims court, or any action to seek injunctive or other equitable relief. Without limiting the foregoing, you acknowledge that in the event of your breach or threatened breach of these Terms, the Brill Parties would suffer irreparable injury not compensable by money damages and for which the Brill Parties would not have an adequate remedy available at law. The Brill Parties, in addition to any other remedies they may have, shall, in the event of any such breach or threatened breach, be entitled to equitable relief, including temporary and permanent injunctive relief, without posting of any security or bond and without proof of actual damages or loss. The foregoing is in addition to and without prejudice to such other rights as the Brill Parties may have under these Terms or Applicable Law.
12. DISPUTE RESOLUTION; ARBITRATION AGREEMENT; CLASS ACTION WAIVER
PLEASE READ THIS ENTIRE SECTION CAREFULLY. EXCEPT WHERE EXPRESSLY PROVIDED HEREIN OR PROHIBITED BY APPLICABLE LAW, IT REQUIRES MANDATORY ALTERNATIVE DISPUTE RESOLUTION PROCESSES INSTEAD OF LITIGATION AND AFFECTS LEGAL RIGHTS YOU MAY OTHERWISE HAVE.
By agreeing to these Terms, you agree that you are required to resolve any claim that you may have against Brill on an individual basis in arbitration, as set forth in these Terms. This will preclude you from bringing any class, collective, or representative action against Brill, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Brill by someone else.
12.1 Agreement to Arbitrate. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, YOU AND BRILL MUTUALLY AGREE TO WAIVE EACH OF THEIR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, AS SET FORTH BELOW. THIS AGREEMENT TO ARBITRATE (“ARBITRATION AGREEMENT”) IS GOVERNED BY THE FEDERAL ARBITRATION ACT AND SURVIVES AFTER YOUR RELATIONSHIP WITH BRILL ENDS. ANY ARBITRATION UNDER THIS ARBITRATION AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THIS ARBITRATION AGREEMENT APPLIES TO ALL DISPUTES (DEFINED BELOW) BETWEEN YOU AND ALL BRILL PARTIES. ALL BRILL PARTIES SHALL BE CONSIDERED INTENDED THIRD PARTY BENEFICIARIES OF THIS ARBITRATION AGREEMENT.
12.2 Exceptions. Although Brill and you are agreeing to arbitrate most Disputes, Brill may elect, at its option, to have any Dispute resolved in court rather than in arbitration by giving you notice of such election within a reasonable time following Brill becoming aware of such Dispute. In such event, each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Cook County, Illinois as applicable, for any matter arising out of or relating to these Terms, except that in actions seeking to enforce any order or any judgment of the federal or state courts located in Cook County Illinois or any arbitration award, such personal jurisdiction will be non-exclusive. Additionally, notwithstanding anything in the foregoing to the contrary, a claim for equitable relief arising out of or related to these Terms may be brought in any court of competent jurisdiction.
12.3 Disputes Covered. Except as expressly provided herein or as otherwise required by Applicable Law, all disputes and claims between you and any Brill Party (each a “Dispute” and collectively “Disputes”) shall be exclusively resolved by binding arbitration solely between you and the applicable Brill Party. Disputes include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: these Terms and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), any Service or Content, your relationship with any Brill Party, the threatened or actual suspension, deactivation or termination of these Terms, payments made by you or any payments made or allegedly owed to you, any promotions or offers made or allegedly made by or on behalf of a Brill Party, any Applicable Law, trade secrets, unfair competition, discrimination, harassment, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Brill and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Dispute (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided herein.
12.4 Arbitration Procedures. This Arbitration Agreement, and any arbitration hereunder, is subject to the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) in Chicago, Illinois under its Commercial Arbitration Rules, as such rules are modified hereby (the “AAA Rules”). The AAA Rules and filing forms are available online at www.adr.org or by calling the AAA at +1-800-778-7879. The mandatory arbitration will be submitted before a panel of three arbitrators selected in accordance with the AAA Rules. The arbitrator(s) shall have the same authority to award remedies and damages as a judge and/or jury under state or federal law. If a proceeding is commenced to resolve any Dispute (including, without limitation, any action to compel arbitration hereunder), the prevailing party in that proceeding is entitled to receive its reasonable attorneys’ fees, expert witness fees and out of pocket costs, in addition to any other relief to which that prevailing party may be entitled.
12.5 Class Action Waiver. YOU UNDERSTAND AND AGREE THAT YOU AND BRILL MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND BRILL BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. Notwithstanding any other provision of these Terms, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (a) the dispute is filed as a class, collective, or representative action and (b) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Dispute, then that Dispute shall be severed from any remaining claims and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Disputes to the fullest extent possible.
12.6 Mass Filings. If twenty-five (25) or more similar Disputes are asserted against Brill by the same or coordinated counsel, the AAA’s Mass Arbitration Supplementary Rules will apply, and the parties agree to cooperate in good faith to resolve the Disputes efficiently, including through bellwether proceedings.
13. TERMINATION, CHANGES, AND ELECTRONIC COMMUNICATIONS
13.1 Termination. Brill reserves the right to suspend or terminate your access to and use of all or any portion of any Service or Content at any time and for any reason, in its sole discretion. In the event your use of a Service is suspended or terminated, these Terms will continue to apply to your past use of the Service and Content in the form in which it then existed at the time of the subject use. Termination of your access to and use of the Service shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability that you otherwise may have hereunder or otherwise to Brill. Without limiting the foregoing, this Section 13, together with Sections 4, 5, 6, 8, 9, 10, 11, 12, 14, and 15 shall survive termination of these Terms or your access to any Service for any reason.
13.2 Notices. From time to time, Brill may post legal notices to the Service. You shall not remove these notices, or any additional information contained along with any such notice. The Service may contain references to trademarks, copyrighted materials, technologies, products, data, processes and software and other proprietary rights of Brill, Third Party Providers or other Persons. Except as necessary for your access to and use of the Service for the purposes expressly permitted by these Terms, no license to or right in any such trademarks, copyrighted materials, technologies, products, data, processes, software or other proprietary rights of Brill or any Third Party Provider is granted to or conferred upon you.
13.3 Modifications. Brill may modify these Terms or any of the policies or guidelines governing the Service, at any time and in its sole discretion (including, without limitation, as required by any Third Party Provider), by posting the modified Terms in the Service. Brill will not be required to provide notice of any such modification directly to you. The modifications shall be effective upon such posting (unless some other date is specified in the posting, in which case that date shall be deemed the effective date for the modifications). You agree to review these Terms periodically so that you are aware of any modifications. Your use of the Service indicates your full acceptance of these Terms in their then-current form each time you use the Service. You agree that the notice and modification provisions provided in these Terms are reasonable. You may not modify these Terms or any of the policies or guidelines governing the Service without Brill’s express prior written consent.
13.4 Updates. Brill reserves the right, in its sole discretion, to make unscheduled deployments of updates, enhancements or such other changes to the Service at any time that Brill deems necessary or otherwise desirable, in each case to the full extent permitted by Applicable Law and without notice or liability to you. The Service may be interrupted, including for maintenance, repairs, upgrades, or network or equipment failures. Brill may restrict the availability of the Service or certain areas or features thereof, to enforce capacity limits, maintain the security or integrity of its servers, or carry out maintenance of the Service. Brill has no obligation for any use of the Service or any Content in violation of these Terms (including which have been altered by anyone other than Brill) or for which payment has not been received. Without limiting the foregoing, Brill is not responsible for problems that arise from: (i) your or a third party’s accident or neglect; (ii) any third party items or services with which the Service or any Content is used; (iii) operation or use not in accordance with Brill’s instructions or these Terms; (iv) use in an environment, in a manner, or for a purpose for which the Service was not designed; or (v) modification, alteration or repair by anyone other than Brill.
13.5 Electronic Communications. You consent to receive electronically any communications from Brill. Brill may communicate with you through the email address you provide to Brill or by posting notices on the Service. You agree that all agreements, notices, disclosures, and other communications that are provided to you electronically satisfy any requirement that such communications be in writing. All notices from Brill intended for receipt by you shall be deemed delivered when sent to the email address you provided to Brill.
14. COMPLIANCE AND NOTICES
14.1 Location of Operation; Trade Compliance. Brill controls and operates the Service from its headquarters in the United States of America, and Brill makes no claim that the Service may be lawfully used or accessed outside of the United States. Access to the Service or certain Content may not be legal by certain Persons or in certain countries. If you access the Service from outside of the United States, you do so at your own risk and you are responsible for compliance with the laws of your jurisdiction. You may not use, export, re-export, import or transfer the Service (or any portion thereof or any rights thereto granted by Brill) except as authorized by the Applicable Laws, and you may not export, re-export, import, or transfer the Device or the Platform without Brill’s prior express written permission. In particular, but without limitation, you will not permit the Service or any Content to be accessed, transferred, or stored in any country, jurisdiction, or location (the following (i)-(iv), collectively, “Prohibited Locations”): (i) included on the Embargoed Countries List published by the U.S. Department of Commerce’s Bureau of Industry and Security; (ii) included on any Sanctions List (hereinafter defined); (iii) having data localization laws that would adversely impact Brill’s ability to transfer such Service or Content out of such country, jurisdiction, or location; or (iv) which offers legal safeguards with respect to intellectual property less protective than those of the United States. Brill reserves the right to limit, in its sole discretion, the availability of the Service to any Person, geographic area, or jurisdiction, at any time. Without limiting the foregoing, you are subject to and responsible for compliance with the export control and economic sanctions laws of the United States and other applicable jurisdictions. The Service and Content may not be used, sold, leased, exported, imported, re-exported, or transferred except in compliance with such laws, including, without limitation, export licensing requirements, end user, end use, and end-destination restrictions, prohibitions on dealings with sanctioned individuals and entities, including but not limited to Persons on the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List, or the U.S. Department of Commerce Denied Persons List. You represent and warrant that you (a) have not and will not violate, or cause any Person to be in violation of, any applicable anti-bribery or anti-corruption law (including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.S. domestic bribery statute in 18 U.S.C. 201, the U.S. Travel Act, or the UK Bribery Act 2010), anti-kickback laws, anti-money laundering and anti-terrorist financing laws, sanctions, embargoes, export controls, import controls, anti-fraud laws, or any other Applicable Law; (b) have not used, and will not use or apply, any Service or Content in violation of Applicable Laws; (c) are not, and will ensure that Persons using the Service on your behalf are not, (1) nationals, residents, agents or representatives of, or located in, any Prohibited Location; (2) on the List of Specially Designated Nationals & Blocked Persons, the Sectoral Sanctions Identifications (SSI) List, or Foreign Sanctions Evaders List maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, or any other applicable list of sanctioned, embargoed, blocked, criminal, or debarred Persons maintained by any U.S. or non-U.S. government, the European Union, Interpol, the United Nations, the World Bank, or any other public international organization (each such list, a “Sanctions List”); (3) an entity that is 50% or more owned, individually or in the aggregate, directly or indirectly, by, is controlled by (including without limitation by virtue of such Person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any Person on a Sanctions List; or (4) otherwise the target of any sanctions, suspensions, embargoes or debarment by the U.S. government or any other government or public international organization; (d) shall secure all necessary export/sanctions licenses or authorizations to the extent applicable and necessary; (e) shall cooperate with Brill to ensure compliance with all Applicable Laws; and (f) will comply with your obligations in these Terms. A violation of the foregoing representations, warranties, or covenants will constitute a material breach of these Terms.
14.2 Notices to Brill. Any notice to Brill (including DMCA notices and arbitration notices) that is required or permitted by these Terms shall be in writing and shall be deemed effective upon receipt when sent by confirmed email to legal@brillneurotech.com, when delivered in person, or two (2) business days after being mailed by first-class, registered, or certified mail, postage prepaid, to: Brill Neurotech, Inc., Attn: Legal, 21 S Evergreen Ave, Suite 200-146, Arlington Heights, IL 60005. Privacy questions may be sent to privacy@brillneurotech.com.
15. GENERAL
These Terms, as modified from time to time, contain the entire agreement between Brill and you regarding their subject matter and supersede all contemporaneous or prior understandings, agreements, or representations between Brill and you, whether written or oral. Headings used in these Terms are for convenience only. They do not constitute part of these Terms. These Terms will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. Brill may assign these Terms in whole or in part at any time without your consent. You may not assign these Terms or delegate any of your obligations hereunder. Any purported assignment in violation of these Terms shall be void. No provision or breach of these Terms will be deemed to have been waived or consented to, unless such waiver is in writing and signed by an authorized signatory of us. If any part of these Terms is deemed invalid or unenforceable by a court of competent jurisdiction, including, but not limited to the warranty disclaimers and liability provisions set forth herein, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of these Terms shall continue in effect. Nothing in these Terms creates a partnership, joint venture, employment, or agency relationship. We will not be liable or responsible to you, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of our obligations under these Terms or in providing the Service, when and to the extent such failure or delay is caused by or results from any events beyond our ability to control, including acts of God; flood, fire, earthquake, epidemics, pandemics, tsunami, explosion, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, government order, law, or action, embargoes or blockades, strikes, labor stoppages or slowdowns or other industrial disturbances, shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity, and other similar events beyond our control. These Terms are written in English, and the English version controls.