brainTivity Terms and Conditions Introduction Use of the brainTivity.com website ("brainTivity"), is subject to the following Terms and Conditions ("Terms and Conditions"). The Terms and Conditions and all other obligations and rules detailed in writing on brainTivity (collectively, the "Terms and Conditions") are by and between brainTivity (each, "brainTivity," "us," or "we") and everyone who uses brainTivity (each, "you,", “your”, "user,", “winner” or "player"). Your access or use of the brainTivity site indicates your understanding of and agreement to be bound by these Terms and Conditions and notices contained or referenced on brainTivity. If you do not agree to these Terms and Conditions of use, please do not use the brainTivity Site. All titles and subtitles in these Terms and Conditions are for reference only and all sections of these Terms and Conditions apply fully to the entire document. Please note that brainTivity reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms and Conditions of use at any time. Changes will be effective when posted on the brainTivity site with no other notice provided. It is your responsibility to check these Terms and Conditions of use regularly for updates and modifications. Your continued use of the brainTivity site following the posting of changes to these Terms and Conditions of use constitutes your acceptance of those changes. In addition, when using particular brainTivity owned or operated services, you and brainTivity shall be subject to any posted guidelines or rules applicable to such services, which may be posted and modified from time to time. All such guidelines or rules are hereby incorporated by reference into the Terms and Conditions. brainTivity may also offer other services that are governed by different Terms and Conditions. For instance, different terms apply to members of IBM on brainTivity or Educational brainTivity Service. The parties to these Terms and Conditions agree and agree that these Terms and Conditions and all documents relating thereto be drawn up in English. It is the responsibility of all site users to understand and accept all Terms and Conditions and notices in English. Privacy For information on how user information is collected, used and disclosed by us in connection with your use of the brainTivity site and any of the services provided by brainTivity, please consult the brainTivity Privacy Policy. Governing Law and Disputes The Terms and Conditions will be interpreted, governed and construed in accordance with the laws of the Province of Ontario, Canada, irrespective of any principles of conflicts of law. By registering for an account and/or participating in any challenge, contest or game offered on brainTivity, you agree that any dispute that cannot be resolved between the parties shall be resolved individually, without resort to any form of class action. You further agree that any legal action arising from any dispute shall proceed only in the provincial courts located in the Province of Ontario, or as otherwise determined solely by brainTivity, and you hereby submit to personal jurisdiction and venue in such courts for the purposes of litigating any such action and further waive any objections based upon venue. Arbitration and Actions All causes of action, controversies, claims or disputes, shall be resolved individually, without resort to any form of class action. Any cause of action, controversy, claim or dispute arising out of or relating to these Terms and Conditions will be referred to and finally settled by private and confidential binding arbitration before a single arbitrator held in Toronto, Ontario in English and governed by Ontario law pursuant to the Arbitration Act, 1991 (Ontario), as amended, replaced or re-enacted from time to time. The arbitrator shall be a person who is legally trained and who has experience in the information technology field in Canada and is independent of either party. Any and all claims, judgments and rewards shall be limited to actual out-of-pocket costs incurred, but under no circumstances will a user be permitted to seek recovery for, and the user hereby waives all rights to claim, legal fees or expenses, punitive, incidental and consequential damages and any other damages and waives any and all rights to have damages multiplied or otherwise increased. Notwithstanding the foregoing, brainTivity reserves the right to pursue the protection of intellectual property rights and confidential information through injunctive or other equitable relief through the courts. Assignment This agreement is personal to you, and you may not assign your rights or obligations to any person, heir, executive or assign. Entire Agreement The Terms and Conditions constitute the entire agreement between you and brainTivity pertaining to the subject matter hereof and supersedes all prior or other arrangements, understandings, negotiations, and discussions, whether oral or written. The Terms and Conditions cannot be modified on an individual basis by any person using, affiliated, or claiming affiliation, with the brainTivity. Nothing in this subsection will prevent the brainTivity from modifying the terms of the Terms and Conditions and posting such modifications on brainTivity. brainTivity’s waiver or failure to insist upon or enforce strict performance of any right or provision of these Terms and Conditions shall not be deemed, shall not constitute or shall not be construed as a waiver of any other provisions hereof (whether or not similar), nor shall waiver constitute a continuing waiver unless otherwise expressly provided. Severability If any of the provisions (or parts thereof) contained in the Terms and Conditions is deemed to be void or invalid, unenforceable, by a court of competent jurisdiction, then that provision shall be deemed severable from the Terms and Conditions and shall not affect the validity and enforceability of the remaining provisions, which will otherwise remain in full force and effect. Conditions and Obligations Eligibility To be eligible to register and open an account and participate in any tournament, contest or challenge offered on brainTivity, you must: (a) be a natural person at least 18 years of age or older, who is assigned to the e-mail address submitted on your account registration form; (b) be a legal resident of Canada with a Canadian address and currently residing at the address in an eligible location; (c) completely and accurately fill in and submit the registration form; (d) be physically located within the Canada; (e) be physically located in a Canadian province or territory in which participation in the tournament, contest or challenge you select on brainTivity is unrestricted by law; and (f) at all times abide by the Terms and Conditions. By using or accessing brainTivity, you represent and warrant that you have the right, authority, and capacity to enter into this agreement to abide by all the Terms and Conditions. Residents of the Province of Quebec are restricted from entering brainTivity contests, challenges and tournaments. Residents outside of Canada who wish to be eligible to register and open an account and participate in any tournament, challenge or contest offered on brainTivity, must: (a) be a natural person at least 18 years of age or older, who is assigned to the e-mail address submitted on your account registration form; (b) be physically located in a jurisdiction in which participation in the tournament you select on brainTivity is unrestricted by law; (c) completely and accurately fill in and submit the registration form and (d) at all times abide by the Terms and Conditions. Void where prohibited or restricted by law. brainTivity reserves the right to deny access to brainTivity to anyone at its sole discretion. It is each user’s responsibility to ensure that use of brainTivity and/or participating in any tournament, challenge or contest, does not violate their local laws. Use of the brainTivity is void where prohibited or restricted by law. If you open an account and/or participate in any tournament, challenge or contest offered on brainTivity while located in a prohibited jurisdiction, you may be in violation of the law of such jurisdiction and will be in violation of the Terms and Conditions and subject to having your account suspended or terminated. In addition, and without limiting any rights or remedies available to brainTivity, in the event of any violation of the Terms and Conditions, all winnings (if any) may be voided, and in the event such winnings have already been withdrawn by you, they may be recouped by brainTivity, at your expense, at the sole and absolute discretion of brainTivity. brainTivity is concerned about the safety and privacy of all its users, particularly children and minors. Minors are considered to be persons who are not the age of majority in their jurisdiction of their residence. For this reason, parents of children under the age of 18 who wish to allow their children access to the brainTivity Services must create a brainTivity Family Account. When you create a brainTivity Family Account and add your child to the account, you certify that you are at least 18 years old and that you are the legal guardian of the child/children listed on the brainTivity Family Account. Minors are allowed to register and use brainTivity with the permission and knowledge of their parent or legal guardian. By adding a child to your brainTivity Family Account, you also give your child permission to access many areas of the brainTivity, including, message boards and the game network (among others). Please remember that the brainTivity is designed to appeal to a broad audience. Accordingly, as the legal guardian, it is your responsibility to determine whether any of the brainTivity areas and/or Content are appropriate for your child. The parent or legal guardian will supply the credit card and payments necessary to maintain the monthly fees as prescribed by the membership chosen for the Minor and further the parent or legal guardian agrees to the Terms and Conditions herein and agrees that the Terms and Conditions will be binding upon the Minor and the parent or legal guardian. Minors are not allowed to participate in any tournament, challenge or contest where a prize is offered. All challenges, contests or tournaments, are skill based, with no element of luck or chance involved. All games require mental acuity and intelligence in areas, including but not limited to mathematics, language, and memory. brainTivity challenges, contests or tournaments, require registration and membership which requires a monthly fee paid to brainTivity. brainTivity reserves the right to offer promotional periods where no registration or monthly fee is required, and revoke those promotional periods at the sole discretion of brainTivity. The rules governing sweepstakes, contests, challenges and tournaments with entry fees and/or prizes vary by government and jurisdiction. It is the user’s responsibility to be aware of the laws in the area where they reside and to ensure that participation in a brainTivity challenge, contest or tournament does not violate their jurisdiction’s laws. The monthly registration fee is set at the sole discretion of brainTivity. The monthly registration fee may be increased or decreased, or waived during promotional periods at the sole discretion of brainTivity. Registration, Accounts and Passwords Each visitor to the brainTivity site (a "User") may only create and maintain a single player account (a "Player Account"). Upon registration with brainTivity, you must create a Player Account by providing an alias that will be your user name, a password, your email, permanent residential address, mailing address, phone number, credit card and your date of birth. You agree to provide accurate and current information about yourself as required by the relevant registration or subscription process, and to promptly update such information as necessary to ensure that it is kept accurate and complete. You agree and understand that all active accounts are subject to a monthly membership fee which is set at the sole discretion of brainTivity. You agree to be responsible and liable for: (a) maintaining the confidentiality of any passwords or other account identifiers which you choose or are assigned as a result of any registration or subscription with brainTivity and (b) all activities that occur under such password or account. Further, you agree to notify us of any unauthorized use of your password or account. Offensive or inappropriate usernames, as determined by brainTivity in its sole discretion, will not be permitted. If brainTivity determines that any person has more than a single Player Account, all Player Accounts belonging to that person and created subsequent to the first account may be automatically suspended or cancelled without notice. All Player Accounts are non transferable. You may not allow any other person to access your Player Account or use your Player Account to access brainTivity or to participate in any contest, tournament or game. By creating a Player Account, each User is deemed to declare that he or she has fully complied with and agrees to be bound by these Terms and Conditions and agrees, on behalf of himself/herself and his or her heirs, executors and administrators to release brainTivity and its affiliates, agencies and/or representatives from all liability, claims and demands arising out of his or her use of the brainTivity. brainTivity reserves the right, in its sole discretion, to change and/or suspend/terminate aliases as brainTivity deems fit. License and Fees Registration with brainTivity requires payment of a membership. brainTivity is provided under license, including but not limited to free trials, membership subscriptions, group or company contracts, and contest memberships. Recurring subscriptions fees will be automatically renewed each billing period until you either downgrade to a contest membership, or terminate your brainTivity account. You are responsible for all applicable fees and charges incurred, including any applicable taxes, for any subscriptions made under your name or account(s), including your brainTivity Family members. brainTivity reserves the right to offer free promotional periods, which may be revoked at any time at the sole discretion of brainTivity. Current registered paying members of brainTivity do not benefit from the free promotional periods, nor are they entitled to any refund of payments during free promotional periods. Accuracy of Information You represent and warrant that all information you supply to brainTivity is complete, accurate and current. Knowingly submitting incomplete or inaccurate information, or failing to update and maintain current, complete and accurate information, may result, without limitation, in immediate termination of your account and forfeiture of any prizes. Account Termination You acknowledge and agree that brainTivity, in its sole and absolute discretion, reserves the right, without notice to you, to suspend or terminate your account, limit or prohibit your participation in any game, tournament, challenge or contest, or modify rank for any reason. You further agree that brainTivity shall not be liable to you or to any other person as a result of any such suspension or termination. Cause for such termination, limitation of access or suspension shall include, but not be limited to, (a) breaches or violations of the Terms and Conditions or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) discontinuance or material modification to brainTivity (or any part thereof), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity, (f) engagement by you in fraudulent or illegal activities, and/or (g) nonpayment of any fees owed by you in connection with brainTivity. Termination of your brainTivity account includes any or all of the following: (a) removal of access to all or part of the offerings within brainTivity, (b) deletion of your password and all related information, files and Content associated with or inside your account (or any part thereof), and (c) barring of further use of all or part of brainTivity. Any fees paid or accrued hereunder will be deemed non-refundable. All winnings (if any) may be voided at the sole discretion of brainTivity. By registering for an account and/or participating in any tournament, challenge or contest offered on brainTivity, you consent to allow brainTivity to access your account information to investigate complaints or other allegations of Abuse. You may terminate your brainTivity account, and access to brainTivity by submitting such termination request to brainTivity, by Email on the Contact Us page. If you are dissatisfied with brainTivity or with any terms, conditions, rules, policies, guidelines, or practices of brainTivity in operating the brainTivity Site, your sole and exclusive remedy is to discontinue using the brainTivity Site or service. You may cancel at any time with no refund. You may cancel your registration or subscription to brainTivity at any time during the term of such registration or subscription or any renewal period by accessing emailing your request to brainTivity, on the Contact Us page. In such case, your subscription will terminate at the end of the subscription term for which you have paid, and you will not receive any refund for any unused days of such subscription term. Please note that if you paid for your subscription or renewal using a multi-part payment option, you may only cancel your subscription or renewal after the final payment has been paid. brainTivity may terminate your membership and/or subscription by sending notice to you at the email address you provide in your application for membership, or such other email address as you may later provide to brainTivity. If brainTivity terminates your membership because you have breached this Agreement, you will not be entitled to any refund of unused subscription fees. Your brainTivity subscription will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional subscription rate. To change or resign your subscription at any time, send an email to brainTivity on the Contact Us page. Any free trial or other promotion that provides subscriber-level access to brainTivity must be used within the specified time of the trial. You must cancel your subscription before the end of the trial period in order to avoid being charged a subscription fee. If you cancel prior to the end of the trial period and are inadvertently charged for a subscription, please contact brainTivity by email on the Contact Us page to have the charges reversed. No Right of Survivorship, Non-Transferability, No Third Party Beneficiaries You agree that your brainTivity account is non-transferable, with no right of survivorship, and any rights to your brainTivity ID or contents within your account terminate upon your death. Upon receipt of a notarized copy of a death certificate, your account may be terminated. You agree that, except as otherwise expressly provided in these Terms and Conditions, there shall be no third-party beneficiaries to this agreement. Additional Persons Not Eligible The following persons are ineligible to receive any prize offered on brainTivity: employees, officers, and directors (and their immediate family members) of brainTivity, its parent companies, subsidiaries, and affiliates; and any other person with access to non-public information regarding the operation of any tournament, challenge or contest offered on brainTivity. For purposes of this section, immediate family members include parents, siblings, spouses, children, or any other person permanently residing in the same household with such employee, officer, or director. Acknowledgment of Proprietary Rights By registering for an account and/or participating in any tournament, challenge or contest offered on brainTivity, you acknowledge that all information and software contained on brainTivity may be protected, in all forms and media, by one or more valid copyrights, patents, trademarks, trade secrets, confidentialities or other proprietary rights, and that all such rights are owned by brainTivity and protected by intellectual property and other laws. This includes, but is not limited to the patterns and images used within the Software, game and process methodologies, and algorithms used within brainTivity. brainTivity grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, publish, participate in the transfer or sale of, create a derivative work from, reverse engineer, reverse assemble, in any way exploit or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software except that you may download one copy for your personal, non-commercial in-home use only, provided you keep intact all copyright and other proprietary notices. You agree not to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to brainTivity. You agree not to access brainTivity by any means other than through the interface that is provided by brainTivity for use in accessing the brainTivity Site. brainTivity neither warrants nor represents that your use of materials displayed on brainTivity will not infringe rights of third parties. Any communication or material you transmit to brainTivity by electronic mail or otherwise, including any data, questions, comments, suggestions, or the like, are and will be treated as, non-confidential and non-proprietary. Anything you transmit or post may be used by brainTivity or its affiliates for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast, Site promotion, marketing and posting. Furthermore, brainTivity is free to use any ideas, concepts, know-how or techniques contained in any communication you send to brainTivity for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products using such information, without any additional compensation or other liability or obligation whatsoever to you. Except as expressly authorized by brainTivity or the applicable licensor (such as an advertiser), you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on brainTivity, such Content or the Software, in whole or in part. Trademarks and Intellectual Property of brainTivity The names, titles, designs, trademarks, logos, and service marks including any derivative and related names, (collectively the "Trademarks") displayed on brainTivity, including the names of all games and puzzles, are registered and unregistered Trademarks of brainTivity and/or others and are the sole and exclusive property of brainTivity. Nothing contained on brainTivity should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark displayed on brainTivity without the written permission of brainTivity or such third party that owns the Trademark displayed on brainTivity. Your misuse of any Trademark displayed on brainTivity, or any other content on brainTivity, except as provided in the Terms and Conditions, is strictly prohibited. You are also advised that brainTivity will aggressively enforce its rights (including intellectual property rights) to the fullest extent of the law, including but not limited to, the active pursuit of criminal prosecution and/or civil litigation where appropriate. All other names, titles, logos and designs appearing as links to third parties on brainTivity are the property of their respective owners. Any use of any trademarks appearing on brainTivity without the express written consent of the owner of the trademark is strictly prohibited. brainTivity contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, photographs, graphics, images, illustrations, audio, video and software (collectively, the "Content") and the entire contents of brainTivity also are protected by copyright as a collective work and/or compilation under the Canadian copyright laws, international conventions and other copyright laws. brainTivity owns the copyright in the Content original to us and in our selection, coordination, arrangement and enhancement of the Content. Notice and Procedure for Making Claims of Copyright or Intellectual Property Infringement brainTivity respects the intellectual property of others, and we ask our users to do the same. brainTivity may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide brainTivity's Copyright Agent the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (ii) a description of the copyrighted work or other intellectual property that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the site; (iv) your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf. brainTivity's Agent for Notice of claims of copyright or other intellectual property infringement can be reached at Contact Us. Promotional Activities By registering for an account, you agree that brainTivity may display your username and tournament records. By accepting any prize from brainTivity, you agree to allow brainTivity to print, publish, broadcast and use, worldwide, in any media and at any time, your name, picture, voice, likeness, and/or biographical information for promotional, marketing or related purposes without additional compensation. Submissions of Ideas or Suggestions brainTivity is always improving its website and services and developing new features. All comments, questions, submissions or suggestions received by brainTivity, including, but not limited to, notes, text, drawings, or computer programs, shall become, and shall remain, the sole property of brainTivity. No submission shall be subject to any obligation of confidence on the part of brainTivity. brainTivity shall exclusively own all rights to, and shall be entitled to unrestricted use of, all such submissions without any compensation to you whatsoever. Under no circumstances shall any disclosure of any idea and/or suggestion or related material to brainTivity (including but not limited to programming development ideas) be subject to any obligation of confidentiality or expectation of compensation. By submitting the idea and/or suggestion or any related material to brainTivity, you are waiving any and all rights, licenses, and royalties, that you may have in the idea and/or suggestion or any related material and are representing and warranting to brainTivity that the idea and/or suggestion or any related material are wholly original with you, that no one else has any rights in the idea and/or suggestion or any related material and that brainTivity is free to implement the idea and/or suggestion and to use the related material if it so desires, as provided or as modified, or adapted by brainTivity, without obtaining permission or license from you or any third party. In particular, you waive any and all rights, licenses and royalties: (i) with respect to Information collected during your brainTivity Services session, including but not limited to results of game play, multiplayer sessions, reporting and analytics, and you grant brainTivity the license to use, distribute, reproduce, modify, or adapt in order to provide summary or detail statistical information by country, specific regions or various user groups; (ii) with respect to Content you submit within brainTivity , and you grant brainTivity the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the brainTivity Services solely for the purposes of providing and promoting the specific brainTivity Group to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on brainTivity and will terminate at the time you remove or brainTivity removes such Content from brainTivity; (iii) with respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of brainTivity other than brainTivity Groups, you grant brainTivity the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on brainTivity solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on brainTivity and will terminate at the time you remove or brainTivity removes such Content from brainTivity; and (iv) with respect to Content other than photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of brainTivity other than brainTivity Groups, you grant brainTivity the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed. "Publicly accessible" areas of brainTivity are those areas of brainTivity that are intended by brainTivity to be available to the general public including but not limited to, brainTivity Message Boards. However, publicly accessible areas of brainTivity would not include portions of brainTivity Groups that are limited to specific members, brainTivity intended for private communication such as brainTivity Messenger, or areas off of brainTivity such as portions of World Wide Web sites that are accessible via hypertext or other links but are not hosted or served by brainTivity. Professional Information Disclaimer brainTivity may make available certain information provided by third parties related to various professional fields (the "Professional Information"). The Professional Information is provided for educational and entertainment purposes only and should not be interpreted as a recommendation for a specific treatment plan, product or course of action. Use of brainTivity does not replace consultations with a qualified medical, legal, financial or other relevant professional. In addition, while the Professional Information is frequently updated, this information changes rapidly and, therefore, some of the Professional Information may be out of date. You agree that all risk associated with the use of, or reliance on, any of the Professional Information rests with you. You further agree that brainTivity, including without limitation its suppliers, shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your use of, or reliance on, any Professional Information. Monitoring You acknowledge that brainTivity has no obligation to monitor the brainTivity Site or any content accessible through brainTivity. However, you agree that brainTivity has the right (but not the obligation) to monitor the brainTivity Site electronically from time to time, should brainTivity so choose, and to disclose any information as necessary to satisfy any law, regulation or other governmental request, to operate brainTivity or to protect itself or its users and customers in accordance with the brainTivity Privacy Policy. Updates and Communication brainTivity provides users with access to a rich collection of resources, including without limitation various communications tools, literature, forums, games, educational tools, game networks, reporting and analytics, and branded programming through its network of properties which may be accessed through any various medium or device now known or hereafter developed. You also understand and agree that brainTivity may include advertisements and that these advertisements are necessary for brainTivity to provide certain features. You also understand and agree that brainTivity may include certain communications from brainTivity, such as service announcements, administrative messages and the brainTivity Newsletter, and that these communications are considered part of brainTivity registration and membership and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augments or enhances the current brainTivity, including the release of new brainTivity properties, shall be subject to the Terms and Conditions. Further, brainTivity may provide you with notices, including those regarding changes to the TOS, including by but not limited to email, regular mail, SMS, MMS, text message, postings on brainTivity, or other reasonable means now known or hereafter developed. Such notices may not be received if you violate these Terms and Conditions by accessing brainTivity in an unauthorized manner. Your agreement to these Terms and Conditions constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed brainTivity in an authorized manner. Downloads and Shareware brainTivity may allow you to download software applications or other forms of Content, including without limitation files, images and/or data incorporated therein (collectively, the "Software"). The Software is made available to you by brainTivity or third parties subject to the terms and conditions made available to you during the software installation process. Additionally, you agree that the Software is licensed to you by brainTivity or third parties for your personal and non-commercial use only provided that you do not modify the Software and that you maintain all copyright and other proprietary notices and that brainTivity or the designated third parties retain full and complete title to the Software and all intellectual property rights therein. You may not redistribute, sell, de-compile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form. You agree that it is your responsibility to review and evaluate the Software and the related terms and conditions, and that all risk associated with the use of, or reliance on, the Software rests with you. You further agree that brainTivity, including without limitation its suppliers, shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your use of, or reliance on, the Software, including without limitation the failure of the Software to meet your needs, standards, expectations or specifications. brainTivity System You understand that brainTivity and software embodied within brainTivity may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by brainTivity and/or content providers who provide content to brainTivity. You may not attempt to override or circumvent any of the usage rules embedded into brainTivity. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on brainTivity, in whole or in part, is strictly prohibited. General Practices Regarding Use and Storage You acknowledge that brainTivity may establish general practices and limits concerning use of brainTivity, including without limitation the maximum number of days that reports and analytics, message board postings or other uploaded Content will be retained by brainTivity, the maximum number of messages that may be sent from or received by an account on brainTivity, the maximum size of any message that may be sent from or received by an account on brainTivity, the maximum disk space that will be allotted on brainTivity's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access brainTivity in a given period of time. You agree that brainTivity has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by brainTivity. You acknowledge that brainTivity reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that brainTivity reserves the right to modify these general practices and limits from time to time. Content Linked To brainTivity You must exercise your own discretion while browsing the internet. brainTivity may contain links to other independent third-party websites ("Linked Sites"). These Linked Sites are provided solely as a convenience to our visitors and users. Such Linked Sites are not under brainTivity's control, and brainTivity is not responsible for, the availability of, and does not endorse and is not responsible or liable for the content of such Linked Sites, including any information or materials contained on such Linked Sites. If you decide to visit any Linked Site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses and other destructive elements. Unless otherwise expressly provided, brainTivity makes no representation or warranty regarding, and does not endorse, any Linked Site or the information, products or services appearing thereon. Accordingly, you agree that brainTivity will not be responsible or liable in any way for the accuracy, relevancy, copyright compliance, legality, or decency of material contained in any site linked from brainTivity. You further acknowledge and agree that brainTivity shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource. Dealing With Third Parties You acknowledge and agree that your correspondence or business dealings with any third parties, including without limitation any merchants or advertisers, found on or through brainTivity, including without limitation payment for and delivery of related goods and services, and all other terms, conditions, representations and warranties related to such dealings, are solely as between you and such third parties. brainTivity assumes no responsibility whatsoever for any charges you or any user of your account incurs when making purchases or other transactions in this manner. Further, you assume all responsibility for ensuring compliance with all applicable laws in connection with any such transactions. You agree that brainTivity shall not be responsible or liable in any way for any loss or damage of any kind incurred as a result of, or in connection with, any such dealings or transactions. When you download any software from brainTivity, you may also be provided with the opportunity to download software provided by parties other than brainTivity. Please note that when you install and use software provided by third parties, any information that you provide through such use (including Personal Information) will be subject to the privacy policy of that software provider, and shall not be covered by the brainTivity Privacy Policy. You are responsible for obtaining access to the brainTivity Site, and that access may involve third-party fees (such as Internet service provider, downloading or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the brainTivity Services. Privacy Policy brainTivity will not intentionally disclose any personally identifying information about you (including information submitted on the application form, your e-mail address, information obtained by brainTivity from cookies, and information regarding your IP address) to third parties without your consent except where brainTivity, in good faith, believes such disclosure is necessary to comply with the law or other contractual provisions of brainTivity or to enforce the Terms and Conditions or other rules of brainTivity. Your acceptance of any prize from brainTivity constitutes consent for brainTivity's disclosure of personal information as described in the Terms and Conditions. brainTivity reserves the right to collect general demographic and other market information that does not personally identify you to any person without additional consent. brainTivity utilizes e-mails to notify you when you win tournaments, challenges and contests and to let you know of special promotions, and events. New Registrants are automatically opted-in to receive all brainTivity e-mails including but not limited to: promotional marketing e-mails, promotional partner e-mails, and newsletters. You have the choice to opt-in or opt-out of receiving any or all of these types of e-mails at any time by modifying your preferences under the My Account section of the website. To view brainTivity’s full privacy policy, click on the following link: Privacy Policy. System Configuration brainTivity is not responsible for the functioning, compatibility and speed of your computer and internet system. Content All information, data, text, game questions and answers, music, sound, photographs, graphics, video, messages, tags, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. brainTivity is in no way responsible for any Content uploaded, posted, transmitted or otherwise made available on brainTivity. brainTivity does not control the Content posted via the brainTivity and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using brainTivity, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will brainTivity be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via brainTivity. While brainTivity uses reasonable efforts to include accurate and up-to-date information, brainTivity makes no warranties or representations as to its accuracy. brainTivity assumes no liability or responsibility for any errors or omissions in the Content of brainTivity. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content, and seek professional advice where applicable. In this regard, you acknowledge that you may not rely on any Content created by brainTivity or submitted to brainTivity, including without limitation information in brainTivity Games, Message Boards, and in all other parts of brainTivity. You further acknowledge and agree that Content contained in advertisements or information presented to you through brainTivity or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. User Conduct In consideration of the availability and your use of brainTivity, you agree to comply with all applicable laws and these Terms and Conditions. You acknowledge that brainTivity may investigate any violations of law and may cooperate with law enforcement authorities in prosecuting users in this regard. brainTivity reserves the right to temporarily or permanently ban users who violate the Terms and Conditions or who in any way abuse the community purpose of the chat areas, as determined by brainTivity in its sole and absolute discretion. brainTivity further reserves the right to remove any post for any reason, in its sole discretion and reserves the right to refuse any user name. All information disclosed in brainTivity chat rooms, message boards, or via eMessages is revealed to the public. brainTivity is not responsible for any information you choose to disclose to others. Additionally, you agree not to: 1. post, transmit, link to, or otherwise distribute any materials, information or content constituting, advocating or encouraging conduct that would constitute a criminal offense or give rise to civil liability, or otherwise use brainTivity in a manner which is contrary to law or would serve to restrict or inhibit any other user or customer from using or enjoying brainTivity or the Internet; 2. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through brainTivity; 3. defame, abuse, stalk, harass, threaten or otherwise violate the legal rights of others, including without limitation, rights relating to privacy and publicity; 4. post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, infringing, obscene, abusive, harassing, inaccurate, vulgar, hateful, indecent, racially, ethnically, or otherwise unlawful material or information; 5. post, transmit, link to, or otherwise distribute any information, materials or content, including but not limited to, software, which contains a virus, cancelbot, trojan horse, worm or other harmful or disruptive component or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; 6. disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of brainTivity are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges; 7. use any type of profanity, obscenities, or the use of **asterisks** or other "masking" characters to disguise such words; 8. use obscene, lewd, slanderous, pornographic, abusive, violent, insulting, indecent, threatening and harassing language of any kind, as determined by brainTivity in its sole and absolute discretion; 9. harm minors in any way; 10. impersonate person or entity, including, but not limited to, a brainTivity official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity; 11. attack, or defame individuals, companies or products; 12. advertise or promote any product or service of any kind, including without limitation other companies or URLs; 13. upload, post, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); 14. share personal information (your name, phone number, home address, and password) with others on brainTivity; 15. interfere with or disrupt brainTivity or servers or networks connected to the brainTivity, or disobey any requirements, procedures, policies or regulations of networks connected to brainTivity, including using any device, software or routine to bypass our robot exclusion headers; 16. upload, post, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; 17. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by Ontario Securities Commission, any rules of any national or other securities exchange, including, without limitation, the Toronto Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law; 18. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by Canada government as a foreign terrorist organization; 19. collect or store personal data about other users on brainTivity; 20. upload, post, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; 21. use patented, copyrighted or trademarked materials in messages; or 22. use advanced fonts, java, tables, html, or other programming codes or commands in messages. Anti-Spam Policy brainTivity is vigorously against the practice commonly referred to as "Spam". Users who are reported and whose claims of "Spam" are validated by brainTivity, will have their respective accounts either immediately terminated or suspended, without prior notice, at the sole discretion of brainTivity. Additionally, any winnings (if any) may be voided at the sole discretion of brainTivity. Reinstatement of a terminated or suspended account is at the sole discretion of brainTivity. brainTivity defines "Spam" as: 1. Electronic mail messages addressed to a recipient with whom the initiator does not have an existing business or personal relationship or is not sent at the request of, or with the express consent of, the recipient; 2. Messages posted to chat rooms or message boards that are off-topic (unrelated to the topic of discussion), cross-posted to unrelated newsgroups, or posted in excessive volume; and/or 3. Any solicitations posted to chat rooms, or to groups or individuals; ABUSE REPORTING: If you wish to report a violation of our Anti-Spam Policy, please forward all evidence of abuse to our links at Contact Us. Please refer responsibly! Account Limitations Users may establish only one account per person, to participate in the activities offered on brainTivity. brainTivity reserves the right to monitor all activities on brainTivity, including without limitation, any effort to establish multiple accounts. In the event brainTivity discovers that you have opened more than one account per person, all additional accounts will be closed without notice and continued violation will result in the termination of any and all of your accounts and brainTivity may void any associated winnings. brainTivity also reserves the right to deny access to anyone, including, but not limited to, those players who use proxy servers and/or IP addresses residing in certain geographical areas. Accounts for Individual Use Only Users are solely responsible for maintaining their account, all obligations and, assuming compliance with the Terms and Conditions, and are entitled to all benefits accruing thereto. You may not allow any other person to access your account, access brainTivity, accept any winnings, or participate in any tournament, challenge or contest using your account information. Your account is not transferable to any other person. By registering and/or participating in any tournament, challenge or contest offered on brainTivity, you agree to indemnify, defend, and hold brainTivity harmless from or for any claims, liability, damages, and/or costs (including attorneys' fees) arising from any use of your account by any person. Credit Card Use brainTivity is not liable for any loss caused by any unauthorized use of your credit card or other method of payment by a third party in connection with brainTivity. Any attempt to defraud brainTivity through the use of credit cards or other methods of payment, regardless of the outcome, or any failure by you to honor legitimate charges or requests for payment will result in immediate termination of your account, forfeiture of any prizes to which you are otherwise entitled, and active pursuit of civil litigation and/or criminal prosecution. Hacking, Tampering, or Unauthorized Access By registering for an account and/or participating in any tournament, challenge or contest offered on brainTivity, you agree that brainTivity is not responsible for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access or use of brainTivity or your account. Any attempt to gain unauthorized access to brainTivity's systems or any account, interfere with procedures or performance of brainTivity, or deliberately damage or undermine brainTivity is subject to civil and/or criminal prosecution and will result in immediate termination of your account and forfeiture of any prizes to which you are otherwise entitled. Any attempt to participate in any tournament, challenge or contest offered on brainTivity by means of automatic, macro, programmed, or similar methods, or to otherwise commit fraud with regard to brainTivity, will result in active pursuit of civil litigation and/or criminal prosecution, termination of your account, and forfeiture of all prizes to which you might otherwise be entitled. Fraud and Abuse brainTivity strictly prohibits user fraud and abuse relating to the access and use of brainTivity. In accessing brainTivity or participating in any activities, products or services offered by or through brainTivity, you represent and warrant that: (a) all information you supply is complete and accurate and not in violation of any applicable laws, regulations and the Terms and Conditions and (b) you will not circumvent or attempt to circumvent any provision of the Terms and Conditions or engage in any activity that interrupts or attempts to interrupt the operation of brainTivity. Anyone who engages in, participates in, or displays behavior that may be interpreted, in brainTivity's sole and absolute discretion, as the use of unfair methods on brainTivity, including but not limited to, the opening and/or use of multiple accounts, the use of unauthorized or altered software or hardware to assist play (including the use of bots, bot nets, collusion with bots and/or use of software or programs), intentionally poor play in certain games in order to achieve a broader competitive advantage, collusion with other players, harassment of other participants, posting of objectionable material, any breach of the Terms and Conditions, any breach of the security of your account or brainTivity, or any other act (whether through the use of automated technology or otherwise) that unfairly alters your chance of winning or constitutes the commission of fraud (collectively, "Abuse"), you shall be subject to immediate sanction (as determined by brainTivity in its sole and absolute discretion), including without limitation: (1) immediate termination of your account and blocking of Site access; (2) any prizes, winnings and any other representative of value (if any) that you may otherwise have been entitled to receive shall be void and/or forfeited; and (3) any prizes, winnings and representative of value already received by you shall be subject to disgorgement and/or recoupment by brainTivity. Without in any way limiting any provision of the Terms and Conditions, brainTivity expressly reserves the right to institute or seek any injunctive relief, civil and/or criminal proceedings against you and/or any of your co-conspirators arising out of or related to your commission of Abuse, including the right to recover fees and expenses (including attorneys' fees) and the right report you and such abuse to any and all relevant regulatory authorities or governmental agencies. No Commercial Reuse You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, brainTivity (including Content, advertisements, Software and your brainTivity ID). International Use and Export and Import Compliance Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content in your jurisdiction. Use of brainTivity and transfer, posting and uploading of software, technology, and other technical data via brainTivity may be subject to the export and import laws of Canada and other countries. You agree to be liable for any monetary implications of any import and export laws, and to comply with all applicable export and import laws and regulations. In particular, you: (a) represent that you are not a party identified on any government export exclusion list, including, nor will you transfer software, technology, and other technical data via brainTivity to parties identified on such lists; (b) agree not to use brainTivity for military, nuclear, missile, chemical or biological weaponry end uses in violation of Canadian export laws; (c) agree not to transfer, upload, or post via brainTivity any software, technology or other technical data in violation of Canadian or other applicable export or import laws. Disclaimer and No Warranty brainTivity reserves the right to modify or change these Terms and Conditions at any time. By registering for an account and/or participating in any tournament, contest or challenge offered on brainTivity, you agree that: brainTivity and its subsidiaries, divisions, shareholders, employees, officers, directors and agents assume no responsibility, and shall not be liable for: (i) contests, challenges, games or tournaments that are interrupted for any reason including but not limited to, the malfunction of computer equipment, broadcasting equipment, data or software; (ii) activity on User Accounts as a result of lost or stolen account or password information; (iii) the failure, interruption, technical malfunction or delay of any email or other communication to be received by brainTivity or the brainTivity Site, for any reason; (iv) any incorrect or inaccurate information, whether caused by equipment or programming associated with or utilized in the brainTivity Site or by any technical or human error which may occur in the processing of information you provide on the brainTivity Site; (v) any malicious code, including computer viruses, that may infect your personal computer or related equipment, or any other damage to your personal computer or related equipment, as a result of your access to, use of, or browsing of the brainTivity Site or your downloading of any materials, data, text, images, video or audio from the brainTivity Site; (vi) the consequences of any downloads, links or click-throughs from or to any third party or partner websites, obtained through the use brainTivity services or software; (vii) any damage, loss or injury resulting from use, access or attempted use or access of brainTivity; (viii) any losses due to violations of the Terms and Conditions by other users; (ix) lack of enforcement of the Terms and Conditions for the benefit of other users; (x) any damage to your personal computer, any damage, loss or corruption of data or any consequential or incidental damages arising from the use of brainTivity; and/or (xi) any physical, or medical conditions experienced by any user. Specifically, by participating in any game, tournament, challenge or contest, the users acknowledge that technical processing and transmission of the Website may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices. brainTivity is not responsible for incorrect or inaccurate transcription of information, for problems related to any of the equipment or programming associated with brainTivity, a game, challenge, contest or tournament, the Program or utilized by the participant, for any human error, for any interruption, deletion, omission, defect, or line failure of any telephone network or electronic transmission, for problems relating to computer equipment, software, inability to access the Website or online service, or for any other technical or non-technical error or malfunction. To the fullest extent allowable by law, brainTivity specifically disclaim any representations or warranties, express or implied, regarding the products and/or services offered on any third party or partner website, including any implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from a course of dealing or a course of performance. You are solely responsible for and hereby waive any all claims and causes of action with respect to any damage to your computer system, internet access, download or display device, or loss of data that results from the downloading of any material. brainTivity intends on making the brainTivity Site available 24 hours per day, seven days per week, however, there can be no assurance that the brainTivity Site will be available without interruption. brainTivity reserves the right to cancel, terminate or suspend the brainTivity Site, including any interactive games or tournaments, challenges or contests taking place thereon, in whole or in part, at any time. You expressly understand and agree that: (i) brainTivity is provided on an “as is” and “as available” basis and that brainTivity makes no warranties, representations or conditions (“warranties”) of any kind, whether express or implied, including but not limited to, implied warranties or merchantability, fitness for a particular purpose and non infringement and that any such warranties are hereby expressly disclaimed; (ii) brainTivity specifically makes no warranties that brainTivity, including without limitation any content, information, products or services obtained from or through the use of brainTivity will be provided on an uninterrupted, timely, secure or error free basis or that such service/services or the results derived therefrom will meet your requirements or expectations; (iii) brainTivity assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications, personalization settings, educational entries, or any activity within the brainTivity; and (iv) no person affiliated, or claiming affiliation with brainTivity has authority to extend such warranties. No advice or information, whether oral or written, obtained by you from brainTivity or through or from the software shall create any warranty not expressly stated in the Terms and Conditions. A small percentage of users may experience epileptic seizures when exposed to certain light patterns or backgrounds on a computer screen or while using brainTivity. Certain conditions may induce previously undetected epileptic symptoms even in users who have no history of prior seizures or epilepsy. If you or anyone in your family has an epileptic condition, consult your physician prior to using brainTivity. Immediately discontinue use of brainTivity and consult your physician if you experience any of the following symptoms while using brainTivity: dizziness, altered vision, eye or muscle twitches, loss of awareness, disorientation, any involuntary movement or convulsions. In case of a malfunction or disruption of service for which brainTivity is responsible that prevents you from completing a tournament, contest or challenge in which you have begun to participate, brainTivity will, upon verification of the status of the alleged malfunction or disruption of services, restart the tournament, challenge or contest, for that unfinished tournament only. brainTivity reserves the right to determine, in its sole discretion, whether it is responsible for any such malfunction or disruption. brainTivity also reserves the right to limit your tournament, contest or challenge play or terminate your account and seek legal recourse against you, should brainTivity determine, in its sole discretion, that you have intentionally caused such a malfunction or disruption. brainTivity is not liable for any potential winnings from any unfinished tournament. By participating in a game, tournament, challenge or contest, a user waives any and all rights to bring any claim or action related to such matters in any forum beyond one (1) year after the first occurrence of the kind of act, event, condition or omission upon which the claim or action is based. Indemnification You agree to defend, indemnify and hold harmless each of brainTivity, its affiliates and licensors and each of their respective officers, directors, employees, shareholders, successors, assigns, service providers and agents, including all third parties mentioned on brainTivity, from and against any and all claims, actions or demands, including without limitation reasonable legal and accounting fees, resulting from or related to: (a) your breach of any of these Terms and Conditions; (b) your access to or use of the brainTivity Site or Content; or (c) your use or reliance on, or publication, communication or distribution of anything on or from brainTivity. You shall use your best efforts to cooperate with us in the defense of any claim. brainTivity reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. Limitation of Liability In no event shall brainTivity, its affiliates and licensors and each of their respective officers, directors, employees, shareholders, successors, assigns, service providers and agents, including without limitation its subsidiaries, affiliates and licensors, be liable for any damages whatsoever, including any direct, indirect, incidental, consequential, special or exemplary damages, and any damages for loss of profits, savings, goodwill or other intangible losses, regardless of whether brainTivity had been advised of or could have foreseen the possibility of such damages, arising out of or in connection with: (i) the use, inability to use, or performance of any of the services of brainTivity or (ii) any unauthorized access to or modification to any of your content or transmissions, or (iii) any other matter relating to brainTivity or any of the services. You expressly acknowledge that brainTivity has entered into this agreement, and has or may make the brainTivity Site and Content available to you in reliance upon the limitations and exclusions of liability and the disclaimers set forth herein, and that the same form an essential basis of the bargain between you and brainTivity. You expressly agree that the limitations and exclusions of liability and the disclaimers set forth herein will survive, and continue to apply in the case of, a fundamental breach or breaches, the failure of essential purpose of contract, the failure of any exclusive remedy or termination of this agreement. Termination of brainTivity brainTivity may terminate the brainTivity Site, games, tournaments, challenges and contests at any time and may amend these brainTivity Terms and Conditions or administration of brainTivity games, tournaments, challenges or contests, without notice, in its sole discretion in any manner, without any liability to any user. Games Tournaments, Contests, Challenges All tournaments, contests and challenges on brainTivity are based on skill and have no element of luck or chance. Users must apply their knowledge and skills in mathematics, problem solving, word processing and reaction time. brainTivity creates and fosters friendly competition, and a fair contest environment that measures and recognizes skill and ability. Odds and Prizes The results of all tournaments, contests and challenges offered on brainTivity depend on the number of the players participating in such tournaments and the skill of the players in such tournaments; precise odds of winning are therefore unavailable. Prizes will be announced prior to the commencement of a tournament, contest or challenge. If a tournament, contest or challenge has to close prematurely, such as for maintenance or technical problems, the tournament, challenge or contest will restarted and the prize for the tournament will be awarded based on scores from the restarted tournament, challenge or contest. Except where otherwise noted, all participants in tournaments, challenges or contests with brainTivity, require a current paid monthly membership fee with brainTivity. Winners Lists A preliminary list of winners will be posted on brainTivity within ten (10) business days following each tournament, challenge or contest, except in the case of substantial (as determined by brainTivity in its sole discretion) prizes, where lists may be delayed for up to fourteen (14) business days while verification of the results takes place in order to help prevent potential Abuse. Final winners will be posted following completion of the applicable tournament, contest or challenge. Determination of Winners The results and winners of each tournament offered on brainTivity will be determined by brainTivity, and such determinations are final. By registering and/or participating in any tournament, you agree to be bound by these determinations. Game Rules brainTivity will offer a tournament, challenge or contest periodically, for a specific time, as determined solely by brainTivity. brainTivity will choose a specific skill game or games for the users to play under the Challenge Section of the Site. Users will be allowed to play the chosen tournament, challenge or contest game or games, once per day. A user’s best score will be recorded and placed on the rankings list. At the end of the specific tournament, challenge or contest the user with the best score will be declared the winner. Each of the chosen skill game or games is subject to its own rules. By clicking on the Help button within each game the user will be taken through the rules of that particular skill game. It is the user’s responsibility to understand the rules of the skill game or games. In the event of a tie, the winner will be determined as the first user to record the score with the brainTivity site. For example, if User 1 recorded the highest score at 1pm on the brainTivity server, and User 2 recorded the same score at 5pm on the brainTivity server, User 1 will be declared the winner. The results and winners of each interactive contest, game or tournament available on brainTivity will be determined by brainTivity in its sole discretion. In the event of a dispute relating to a brainTivity game or tournament, contest or challenge, including issues relating to a User's compliance with these Terms and Conditions, each User agrees to be bound by the decision of brainTivity, which are final in all respects. Consent to use Personal Information: By creating a brainTivity player account ("Account") and voluntarily providing your personal information (including, but not limited to your name, e-mail address, date of birth, postal code, TV Service Provider, Internet Service Provider and phone number) (collectively, "Registrant Information") you consent to brainTivity's collection and use of the Registrant Information to administer the brainTivity Site. In addition, by opting-in online, you consent to (i) brainTivity's use of your Registrant Information to contact you to promote draws, interactive features and games, promote opportunities to subscribe to brainTivity newsletters and promotional clubs, notify you about programs and special events, promote marketing initiatives from our partners and select advertisers, and automatically enter you into other brainTivity sponsored draws and contests, and (ii) brainTivity’s disclosure of your non-personally identifiable Registrant Information for various purposes in an aggregated manner (collectively, the "Additional Uses"). Your consent to the Additional Uses may be revoked at any time (without revoking your participation in brainTivity games or impairing your chances of winning) by submitting an e-mail with "unsubscribe" in the subject line to Contact Us or by writing to brainTivity at the address set out below. Except as may otherwise be set out in the brainTivity Privacy Policy and as may otherwise be required by law, your Registrant Information will not be disclosed or transferred to any third party without your consent. For further information, please see the brainTivity privacy policy. Beta Games New games scheduled for full release by brainTivity may first be made available for free for a specified period of time. brainTivity reserves the right to limit or broaden the availability or release of any game, the amount of time any game is previewed for free or to change this process in its sole discretion, at any time. FreePlay Tournaments, Challenges and Contests brainTivity reserves the right to hold tournaments, challenges and contests whereby users are allowed to register with brainTivity for free for a period of time. The duration of any free registration period, tournament, challenge or contest, and any prizes are at the sole discretion of brainTivity and may be changed at any time. Game Period brainTivity reserves the right to run tournaments, challenges and contests at any time, in its sole discretion. The start and end date and time will be displayed on the brainTivity site. Dates and times will be set by the brainTivity server, located in Toronto, Ontario, Canada. Participation in games, tournaments, challenges and contests is limited to registered users of brainTivity. Registration is subject to a monthly registration fee, as set by brainTivity. brainTivity reserves the right to change the monthly registration fee at any time, in its sole discretion. Accounts In order to create an Account, you must log on to the website brainTivity.com, click the 'register' button and complete and submit the entry form, found on the registration page, in its entirety. Only one (1) Account will be issued per email address and per user. brainTivity reserves the right to cancel, suspend or refuse to award Prizes (as defined below) to any user who is suspected of having more than one (1) Account (as determined by brainTivity in its sole and absolute discretion). By creating an Account and registering with brainTivity, you agree to be bound by all Terms and Conditions. Complete Set of Terms and Conditions For an additional set of these brainTivity Terms and Conditions and/or the names of Winners, send a written request by self-addressed, stamped envelope (ensure that sufficient postage is included) to brainTivity: 543 Richmond Street West, Suite 223, Toronto, Ontario, M5V 1Y6, Attention: brainTivity Terms and Conditions and Winners List or visit brainTivity.com. Prizes General Disclaimer Terms and Conditions for tournaments, challenges or contests with merchandise prizes are the same as those for tournaments with cash prizes, with the following exceptions: (i) Substitution Winners may request from brainTivity an offer of cash payment in lieu of any prize won, although brainTivity is under no obligation to grant such request. If brainTivity elects, in its sole discretion, to offer a cash payment in lieu of any prize won, brainTivity reserves the right to determine the exact amount of the cash offer, even if such cash offer may be less than the value of the prize. The winner may then elect to accept brainTivity's cash offer, accept the original prize, or decline both and take nothing. brainTivity also reserves the right to credit the account of a merchandise prize winner with cash (the amount of which is in brainTivity's sole discretion) in the event the prize remains unclaimed for more than thirty (30) days. If a prize has become suddenly unavailable, if the winner is outside of Canada. or if there are other difficulties in shipping, brainTivity has the right, in its sole discretion, to substitute freely the cash equivalent (determined by brainTivity's estimated cost to obtain the merchandise prize, and not the manufacturer's suggested retail price or any other price) for any merchandise prize. Winners cannot return or exchange prizes that have already been sent. For all merchandise tournaments, contests or challenges a minimum number of user entries is required in order for the described prize to be awarded to the tournament, contest or challenge winner. If the number of user entries falls below this minimum, the prize will be a cash amount determined in brainTivity’s sole discretion. (ii) Ties In the event of a tie in any cash prize tournament, challenge or contest the prize is divided equally. However, in the event of a tie in a merchandise prize tournament, challenge or contest the user who posted the tying score first will be considered to have finished ahead of the other tying player(s). For example, if user X and user Y tie for 1st place with a score of 1500, and user X finished his/her game at 2:00pm, and user Y finished his/her game at 3:00pm, user X would win the 1st place prize, and user Y would win the 2nd place prize (if any). Legality and Taxes You are subject to all laws of the city, state, province, territory, federal, and/or country in which you reside and from which you access brainTivity and are solely responsible for obeying those laws. Access to brainTivity and/or participation in the challenges, tournaments, and contests may not be legal for some or all residents of, or persons present in, certain jurisdictions. You agree the brainTivity cannot be held liable if laws applicable to you restrict or prohibit your participation. brainTivity makes no representations or warranties, express or implied, as to the lawfulness of your accessing brainTivity or participating in any tournament, challenge or contest offered on brainTivity nor shall any person affiliated, or claiming affiliation, with brainTivity have authority to make any such representations or warranties. brainTivity reserves the right, but has no obligation, to monitor the location from which you access brainTivity and to block access from any jurisdiction in which participation or access is illegal or restricted. brainTivity may require any participant receiving any prize to provide to brainTivity with proof that he or she is, or was at the time the subject tournament, challenge or contest was played, eligible to participate according to the Terms and Conditions. Without limiting any contrary provision of the Terms and Conditions, if the brainTivity monitors your access or participation on brainTivity, brainTivity shall not be liable for the effectiveness of such monitoring. By accessing, using, or downloading in any way any materials on brainTivity, or merely browsing brainTivity, or creating an account and/or participating in any tournament, challenge or contest or service offered by or through brainTivity, you represent and warrant that you are doing so in compliance with the Terms and Conditions and the laws of the jurisdiction you are resident of, and agree to indemnify and hold harmless brainTivity for any liability, claims, and damages (including attorneys' fees) arising out of or related to your violation of the Terms and Conditions. brainTivity does not withhold any taxes on any prizes and winners remain solely responsible for paying all federal, state, provincial, territorial or jurisdictional and other taxes in accordance with the laws that apply in your local, state, province, territory and/or country of residence. In the case of merchandise, either the Manufacturer's Suggested Retail Price, or brainTivity acquisition price, at our discretion, will be used as the cash value of the merchandise prize. Delivery Time and Shipping All goods are shipped from Canada, and accordingly brainTivity takes no responsibility for any damage incurred during shipping. Costs of shipping are borne by the winner. brainTivity will not prepay to send prizes to winners. Winners must prepay brainTivity for the shipping by authorized credit card. Shipped Prizes shall not be insured and brainTivity shall not assume any liability for lost, damaged, or misdirected Prizes. Warranties In the case of merchandise covered by a manufacturer's warranty, the manufacturer and not brainTivity is responsible for initial defects, subsequent use or misuse or covered repairs. In the case of merchandise not covered by a manufacturer's warranty, the merchandise is offered "as is", and brainTivity is not responsible for any defects, use or misuse or repairs. brainTivity makes no representations or warranties with respect to the authenticity or genuineness of any merchandise prizes, particularly collectible prizes. Winners Each winner will be contacted within fourteen (14) days from the time they are deemed to be the winner. Winners may be notified either by: (i) an initial telephone call during regular business hours (EST) at the home telephone number recorded on their Account; or (ii) an e-mail at the e-mail address provided on their Account. If the selected Winner cannot be reached within 48 hours from the time of initial contact, an alternative Winner may be selected in brainTivity's discretion. It is the responsibility of each user to keep his/her Account information up to date at all times so that he/she can be contacted by brainTivity if he/she is eligible to be a Winner. Once contacted, eligible Winners must, in order to be declared eligible to receive a Prize (as the case may be): (i) comply with all brainTivity Terms and Conditions; and (ii) sign brainTivity's standard declaration of compliance with the brainTivity Terms and Conditions, release and consent to publicity form (the "Consent"), which shall serve as the selected entrant's agreement to release and indemnify brainTivity and its respective parent(s), subsidiaries, affiliates and/or related companies and each of their officers, directors, shareholders, employees, advisors, assignees, agents, licensees, representatives, advertising, media buying and promotional agencies from any liability in connection with brainTivity and/or the Prizes. If brainTivity does not receive a signed Consent back from an eligible Winner within five (5) days from the delivery of the Consent to such eligible Winner, then such eligible Winner shall forego any right or entitlement to a Prize; and (iii) agrees that his/her name, residence, photograph, voice and/or image may be used in any and all forms of media, without any further compensation by brainTivity and waives all rights (including moral rights) with respect to printed, broadcast and other forms of publicity. Written confirmation of the foregoing in the form of the Consent referred to above must be executed by each of the Winners and provided to brainTivity prior to such Winner being declared eligible to receive a Prize. Other Prizes For prizes requiring local, state, provincial, territorial or federal licensing or approval, players must provide evidence of such licensing or approval and any other reasonably related information within one (1) week of the initial request for such information, or the prize may be voided. Limitation of Liability If it is determined that brainTivity improperly denied a winner a prize, liability will be limited to the equivalent amount of the manufacturers’ suggested retail price of that prize. In no case will brainTivity be responsible for any fees or expenses incurred by the winner, including but not limited to legal or other fees or expenses. brainTivity contains Adobe Flash Player software by Adobe Systems Inc. Copyright 1995-2006 Adobe Systems Inc. All rights reserved. Adobe, Shockwave and Flash are trademarks of Adobe Systems Inc. All other trademarks are the property of their respective owners.