Terms of Service
Revised date: November 18, 2024
1. ACCEPTANCE OF TERMS
Pool Brain Inc. (“ Pool Brain” or “we”) provides technology-enabled services, including the access to use of Pool Brain’s platform, made available through at https://www.poolbrain.com, any Mobile Apps (as defined below), and other related software, content, and services, including all versions and upgrades thereto (collectively, the “Services ”). Your use of the Services is subject to and governed by the terms and conditions in this Terms of Service (“Terms”) and is a binding agreement between Pool Brain and you (“you”, “your” or “Customer”. Pool Brain may, at its discretion, update these Terms at any time. You can access and review the most current version of these Terms at the URL for this page or by clicking on the “Terms of Service” link within the Services, or as otherwise made available by Pool Brain.
PLEASE REVIEW THESE TERMS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
THESE TERMS REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, OR YOUR ACCESS TO OR USE OF THE SERVICES , INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THESE TERMS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 13 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
You represent and warrant that you: (a) are of legal age to form a binding contract; and (b) have the right, authority, and capacity to agree to and abide by these Terms and if you are an individual accepting the terms of these Terms on behalf of Customer, you represent and warrant that you have legal authority to bind Customer to these Terms.
2. SERVICES
(a) License to the Services. Subject to and conditioned on your compliance with these Terms, Pool Brain hereby grants you a non-exclusive, non-transferable, non-sublicensable, revocable license solely to access and use the Services only for your commercial use. Your access to and use of the Services must further comply in all material respects with all usage guidelines posted by Pool Brain. Any use of the Services not specifically permitted under these Terms is strictly prohibited. The Services provided to you hereunder or available to you through the Services are licensed, not sold, and Pool Brain retains and reserves all rights not expressly granted in these Terms.
(b) Registered Users. Pool Brain reserves the right to restrict certain Services to registered users. In registering or accessing a registered account, you agree to provide accurate, current, and complete account information and represent that all information previously provided to Pool Brain is accurate, current, and complete, including but not limited to your name, address, telephone number, and email address. You agree to periodically update this information as necessary to keep it accurate, current, and complete. Pool Brain has no liability rising from your failure to maintain accurate information, including your failure to receive critical information about the Services. You are responsible for all activities related to the Services that occur through your account and password, and agree to keep your registered account information confidential and to not use any other user account registered with Pool Brain, not permit the use of your account by third parties and not to sell, transfer or assign your account to any third party. Pool Brain reserves the right to terminate any registered account it believes to be in violation of this Section or any other terms in our sole discretion. If you suspect any violation of this Section, including but not limited to any unauthorized use of your account, you agree to notify us immediately at team@poolbrain.com.
(c) Mobile Apps. Pool Brain may make available mobile software applications, including without limitation the Pool Brain application, for access to and use of certain components of the Services (collectively, “ Mobile Apps ”). Your access to and use of Mobile Apps is subject to and governed by these Terms. If any Mobile App is downloaded by you from the iTunes App Store (each, an “ iOS Mobile App ”) or other app store provider, your use of such iOS Mobile App or other app is further subject to your compliance in all material respects with the terms and conditions of the Usage Rules set forth in the iTunes App Store Terms of Service or other app store provider’s terms of service, as applicable. This TOS is between you and Pool Brain only, and not with Apple Inc. (“ Apple ”) or any other app store provider, and Apple or such other app store provider is not responsible for iOS Mobile Apps or such other Mobile Apps and the contents thereof; however, Apple and Apple’s (or such other app store provider and its) subsidiaries are third-party beneficiaries of these Terms with respect to iOS Mobile Apps or Mobile Apps, as applicable.
(d) Platform Operations. Pool Brain’s Platform offers functionalities designed to assist in pool service management, including but not limited to quotes, job and route management, invoices and payments, chemical use tracking and dosing, filter clean management, technician pay calculations, equipment tracking, a customer portal, issue reporting, and QuickBooks synchronization. These tools are provided for information purposes only to help facilitate the operation of your pool service but are not substitutes for professional expertise and judgment. You are solely responsible for operation of your pool service and compliance with industry standards, accepted practices and compliance with applicable laws.
(e) Customer Portal. The Pool Brain Platform allows you to provide access to your customers to schedule appointments, access information regarding their accounts and other services. You are solely responsible for granting access to customers and for all activity and transactions conducted via the customer portal. Pool Brain is not responsible and disclaims any responsibility or liability for any errors or omissions in the data provided by or to your customers or other authorized users or for any loss or damage arising from your reliance on any information available or transmitted through the Platform. Pool Brain disclaims all responsibility for any work performed by you as a result of using the Platform. All agreements and transactions relating to your pool services are solely between the you as the service provider and your customer, and Pool Brain disclaims any and all liability for any aspect of any service transactions facilitated through its Platform.
(f) No Endorsements. Pool Brain does not endorse or recommend any specific pool service provider, service or product, or customer, nor does it verify the qualifications, quality, safety, legality, or other aspects of the services provided by users of the Platform. Any references to services or providers on the platform are for informational purposes only.
3. PRIVACY
(a) Privacy Policy. In addition to these Terms, the Pool Brain Privacy Policy at www.poolbrain.com/privacy-policy (“ Privacy Policy ”) applies to how Pool Brain may process information provided as part of the Services. You acknowledge and agree that by accessing or using the Services, Pool Brain may receive certain information about you, including personal information, as set forth in the Privacy Policy, and Pool Brain may collect, use, disclose, store, share, and process such personal information in accordance with such Privacy Policy.
(b) Data; Privacy.
(i) You are solely responsible for the content of any data or materials that you or your personnel use, process, submit, provide to, or make available through the Platform (“Customer Data”). You represent and warrant that: (i) you have all rights in the Customer Data necessary to grant the rights contemplated by these Terms; and (ii) the Customer Data (including as used in connection with the Platform) does not and will not violate these Terms, any Pool Brain policies or applicable law. You grant Pool Brain and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made all content (in any form and any medium, whether now known or later developed) that you provide in connection with the Services. You acknowledge and agree that the technical processing and transmission of data associated with the Services, may require: (i) transmissions over various networks and across borders; and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.
(ii) Notwithstanding anything to the contrary contained in these Terms, Pool Brain may aggregate Customer Data and other content, data, and user information in such a way that that it will not identify you or your customer and Pool Brain may use that aggregated data to develop and improve the Services, for diagnostic and corrective purposes in connection with the Services and for any other lawful purpose.
(iii) Pool Brain has established and implemented reasonable information security practices regarding the protection of Customer Data, including administrative, technical, and physical security processes. Notwithstanding the foregoing, you are responsible for maintaining appropriate security, protection, and backup of all information, content or Customer Data. Pool Brain is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, or loss of, or damage to, or failure to store or encrypt, any data unless due to the gross negligence or willful misconduct of Pool Brain.
(iv) Notwithstanding the fact that you may be listed on a federal, state or other applicable “Do Not Call” list or any current or prior election to opt in or opt out of receiving phone calls, emails, SMS or text messages, mail or other messaging from us, our agents, representatives, affiliates, anyone calling on our behalf or our service providers regarding the Services, you expressly consent to being contacted by us, our agents, representatives, affiliates, anyone calling on our behalf or our service providers for any and all purposes arising out of, relating to or regarding the Services, at any telephone number you provide, or physical or electronic address you provide or at which you may be reached. You agree Pool Brain may contact you in any way, including SMS messages (including text messages), calls using pre recorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one via SMS or text. You consent to receive SMS messages (including text messages), calls, messages (including prerecorded and artificial voice and autodialed) or other messaging from us, our agents, representatives, affiliates, anyone calling on our behalf or our service providers at the specific number(s) you have provided to Pool Brain, or numbers Pool Brain can reasonably associate with your account (through skip trace, caller ID capture or other means), with information or questions about the Service or the service or products offered by our service providers. You certify, warrant and represent that the telephone numbers that you have provided to Pool Brain are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to Pool Brain or to our service providers. You agree to promptly alert Pool Brain and our service providers whenever you stop using a particular telephone number. Your cellular or mobile telephone provider will charge you according to the type of plan you carry. Pool Brain may listen to and/or record phone calls between you and Pool Brain’s representatives without notice to you as permitted by applicable law. For example, Pool Brain listens to and records calls for quality monitoring purposes.
(v) By using Pool Brain’s Services, you agree to receive emails and text messages from us regarding the Services to which you have subscribed as well as promotions, and other notifications related to our Services. These communications are intended to keep you informed about opportunities that may be of interest to you. By providing your mobile phone number, you are expressly consenting and “opting in” to receive marketing text message via automated technology. If you decide at any time that you no longer wish to receive such communications, you have the option to opt out. To unsubscribe from emails, you can follow the unsubscribe link provided at the bottom of each email. To stop receiving text messages, you can reply with “STOP” to any message we send. Please note that opting out of these communications may affect your ability to receive important updates and offers about new services and features that may enhance your business management experience.
4. PROPRIETARY RIGHTS
(a) Pool Brain’s Copyrights, Trademarks and Other Intellectual Property. You acknowledge that all content and materials available through our Services, including, but not limited to text, images, audio, video, interfaces, information, data, source code, object code, software, trade names and trademarks, are the property of Pool Brain (collectively, our “Content”); our Content and any content licensed to us by third party content providers are protected by copyright, trademark, and other intellectual property laws and treaties of the United States and foreign countries. Nothing in these Terms grants you any license or right to use our Content except as expressly stated in these Terms. The TOS does not provide you a license to use, reproduce, distribute, display or provide access to any portion of the Services on third party sites or otherwise. Our Content may only be accessed through the Services and neither it nor the technology used to compile or operate the Services may be copied, modified, sold, reproduced, reverse engineered, reverse compiled, distributed, republished, displayed, posted, be used to create derivative or collective works, or transmitted in any form, in whole or in part, without Pool Brain’s prior written consent, which may be withheld or revoked in our sole discretion. Unless you are otherwise explicitly granted permission, these Terms does not grant you any right or license with respect to any trademarks, service marks, graphics, or logos.
(b) Feedback. If you submit to us or post through our Services any testimonial, comment, review, suggestion, feedback or work of authorship (collectively, a “Submission”), you acknowledge and agree that such submission will not be confidential or secret and may be used by us in any manner. Pool Brain assumes no liability for the disclosure or use of information in a Submission that you consider contains confidential or proprietary information, and no submission sent to us will be considered or treated as confidential information. We do not pre-screen submissions and we will have no obligation to read any particular submission submitted or sent to us. In submitting any Submission to us, you: (a) represent and warrant that the submission is original to you, no other party has any rights in the Submission, and that any moral rights in such submission have been waived, and (b) grant us a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sublicensable right and license to use, reproduce, publish, distribute, display, translate, summarize, modify and adapt such submission (in whole or part) and/or to incorporate it in other works in any derivative work, form, media, or technology now known or later developed with or without your name and in our sole discretion.
5. USER CONDUCT AND RESTRICTIONS
(a) In your use of the Services, you will not:
(i) use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, except as expressly permitted under these Terms;
(ii) reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services;
(iii) interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services;
(iv) provide use of the Services on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet “links” to the Services or “frame” or “mirror” the Services on any other server, or wireless or Internet-based device;
(v) access the Services for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services;
(vi) violate any applicable local, state, provincial, federal or international law or regulation, or use the Services for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;
(vii) remove or obscure any proprietary notice that appears within the Services;
(viii) impersonate any person or entity, including Pool Brain personnel, or falsely state or otherwise misrepresent your affiliation with Pool Brain, or any other entity or person;
(ix) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services’
(x) take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure;
(xi) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Services; or download, reproduce, or archive any substantial portion of the Services;
(xii) sign up for, negotiate a price for, use, or otherwise solicit a Professional Service with no intention of following through with your use of or payment for the Professional Service; or
(xiii) attempt to indirectly undertake any of the foregoing.
(b) You will not: upload, post, email, store, transmit, or otherwise make available any content that:
(i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or otherwise objectionable
(ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement);
(iii) infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party;
(iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation;
(v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware;
(vi) contains infringing, libelous, or otherwise unlawful or tortious material; or
(vii) consists of information that you know or have reason to know is false or inaccurate.
(c) Pool Brain’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of these Terms by Pool Brain, and does not create a private right of action for any other party.
6. SUBSCRIPTION SERVICES & FEES
(a) Fees. Certain portions of the Services require a payment of fees for access and use (“Subscription Services”). Subscription Fee means the monthly or annual fee for the Subscription Services published on our website from time to time or otherwise communicated to you at the time you register for Subscription Services which you will pay in accordance with this Section 6. All listed fees are exclusive of taxes. Pool Brain may in its sole and absolute discretion change its Subscription Fees at any time. Pool Brain may charge and/or retain Subscription Fees if you do not fulfill your contractual obligations under these Terms. All payments will be made in United States dollars via (a) electronic funds transfer, (b) credit card or (c) as otherwise required by Pool Brain, as per the instructions of Pool Brain. Pool Brain may elect to use Chargebee for payment, analytics and other business services. In the event that Pool Brain uses Chargebee for payment, analytics or other business services, Chargebee will collect identifying information about the devices that connect to its services. Chargebee uses this information to operate and improve the services it provides to Pool Brain. You can learn more about Chargebee and read its privacy policy at https://chargebee.com/privacy. Pool Brain reserves the right to suspend your access to and use of the Services if your account is more than thirty (30) days past due until payment is made in full.
(b) Free Trial. Pool Brain may offer a free trial of the Services for initial assessment for a limited period. You agree that at the end of the trial subscription, you will no longer be able to access the Services unless you subscribe to a paid subscription. During any trial period, the Services are provided “as-is” with no warranty of any kind, may be subject to limits on use and are intended for evaluative purposes only. We are not liable for any damages, losses, or liabilities of any kind that arise from the use of Services offered during any free trial subscription. Use of the Services and Platform during any trial subscription is at your own risk.
7. ADVERTISERS AND OTHER THIRD PARTIES
The Services may include or provide access to third party products, services, content, or offerings, including advertising for such (“ Third Party Services ”). You acknowledge that different terms of use and privacy policies may apply to your use of such Third Party Services and that terms and policies are solely between you and the advertiser or other third party. You agree that does not endorse and is not responsible or liable for any issues related to Third Party Services. You acknowledge that you have sole responsibility for, and assume all risk arising from, your use of any such websites, resources or services or the content, products or services available on or through such websites or services. We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
8. INDEMNIFICATION
You agree to indemnify and hold harmless Pool Brain and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “ Pool Brain Parties ”) from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys’ fees, to extent resulting from or arising out of any third party claim, demand, or action due to (a) any Customer Data or other content you provide to Pool Brain; (b) your violation of these Terms, any law or regulation, or any rights (including intellectual property rights) of another party; (c) your use of the Services, except as expressly permitted in these Terms; (d) any disputes between you and your customer or any third party or (e) the request for, receipt of, offer for or provision of Professional Services by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, exemplary, punitive, consequential or otherwise) of any kind arising in connection with such Professional Services.
9. DISCLAIMER OF WARRANTIES
(a) YOUR USE OF THE SERVICES AND THE PLATFORM ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, POOL BRAIN PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
(b) POOL BRAIN PARTIES MAKE NO WARRANTY, REPRESENTATION OR GUARANTEES THAT: (i) THE SERVICES OR PROFESSIONAL SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE.
(c) POOL BRAIN MAKES NOT WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO SERVICES OFFERED BY THIRD-PARTY SERVICE PROVIDERS OR PROFESSIONAL SERVICE PROVIDERS AND POOL BRAIN SPECIFICALLY DISCLAIMS ANY WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO THE QUALITY, SAFETY, LEGALITY OR OTHER CHARACTERISTICS OF SUCH SERVICES AND THE CONDUCT OF ANY THIRD-PARTY SERVICE PROVIDER OR PROFESSIONAL SERVICE PROVIDERS.
(d) ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION.
(e) THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE DATE YOU COMMENCE USE OF THE SERVICES (UNLESS SUCH LAW PROVIDES OTHERWISE).
10. LIMITATION OF LIABILITY
(a) YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES AND CONTENT, YOUR OFFERING OR PROVIDING PROFESSIONAL SERVICES OR REQUESTING OR RECEIVING PROFESSIONAL SERVICES THROUGH THE SERVICES, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF POOL BRAIN OR THIRD PARTIES, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU. POOL BRAIN PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF POOL BRAIN PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL POOL BRAIN PARTIES’ TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES, PROFESSIONAL SERVICES OR CONTENT OR YOUR OFFERING OR PROVIDING PROFESSIONAL SERVICES OR REQUESTING OR RECEIVING PROFESSIONAL SERVICES THROUGH THE SERVICES EXCEED THE AMOUNT PAID BY YOU TO POOL BRAIN FOR ACCESS TO THE SERVICES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE.
(b) THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. SUSPENSION & TERMINATION
(a) Pool Brain may terminate or suspend your access to the Services and/or these Terms at any time, with or without notice, if you violate these Terms. Pool Brain reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Pool Brain shall not be liable to you or any third party for any such modification or discontinuance;
(b) Upon termination of these Terms for any reason: (i) Pool Brain, in its sole discretion, may remove and discard your content and information; (ii) you will immediately cease your use of the Services; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of these Terms shall survive such expiration or termination. Further, you agree that Pool Brain shall not be liable to you or any third party for any termination of your account or access to the Services.
12. GOVERNING LAW
This TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Arizona, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to these Terms, regardless of the states in which the parties do business or are incorporated.
13. BINDING ARBITRATION & CLASS ACTION WAIVER
(a) ALL CLAIMS ARISING IN CONNECTION WITH THESE TERMS SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THESE TERMS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
(b) The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/ . Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Phoenix, Arizona or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(c) WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN PHOENIX, ARIZONA. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(d) Notwithstanding anything to the contrary, you and Pool Brain may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 13.
(e) If Pool Brain implements any material change to this Section 13, such change shall not apply to any Claim for which you provided written notice to Pool Brain before the implementation of the change.
14. LEGAL COMPLIANCE
You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where the Services are accessed or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
15. U.S. GOVERNMENT ENTITIES
This section applies to access to or use of the Services by a branch or agency of the United States Government. The Services includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in these Terms with respect to the such items, and any access to or use of the Services by the United States Government constitutes: (i) agreement by the United States Government that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
16. COPYRIGHT INFRINGEMENT CLAIMS – PROCEDURE
If you believe that your work has been made available through the Services in a way that constitutes copyright infringement, please provide Pool Brain’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Services; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, please contact Pool Brain’s Agent for Notice of Copyright Claims. Pool Brain’s Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims:
Pool Brain
Email: team@poolbrain.com
Use subject line: Copyright Claim
17. CALIFORNIA USERS
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
18. GENERAL PROVISIONS
This TOS constitutes the entire agreement between you and Pool Brain concerning your access to and use of the Services. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Pool Brain with respect to such subject matter. In the event of any conflict between or among these Terms and any end user license agreement, privacy policy or usage guidelines to which these Terms refers, the terms and conditions of these Terms shall take precedence and govern. This TOS may not be amended by you except in a writing executed by you and an authorized representative of Pool Brain. Except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms. For the purposes of these Terms, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under these Terms without the prior written consent of Pool Brain. The failure of Pool Brain to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of these Terms. Any prevention of or delay in performance by Pool Brain hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.
