BRAIN HURRICANE LLC BETA TEST TERMS OF SERVICE

LAST REVISION: May 7, 2011

SPECIAL NOTE FOR BRAIN HURRICANE.COM VISITORS

1. Acceptance of Terms.

THESE TERMS OF SERVICE, AS AMENDED FROM TIME TO TIME AND PUBLISHED AT http://brainhurricane.com/terms,  AND COMPRISE A LEGAL AGREEMENT BETWEEN YOU (“YOU”) AND BRAIN HURRICANE LLC (“BRAIN HURRICANE” OR “WE”).  YOU MUST READ AND AGREE TO THESE TERMS OF SERVICE IN ORDER TO BECOME A MEMBER OR USE THE BRAIN HURRICANE WEBSITE AVAILABLE AT HTTP://WWW.BRAIN HURRICANE.COM (“WEBSITE”) AND THE SERVICES, FEATURES, CONTENT, APPLICATIONS OR WIDGETS OFFERED BY BRAIN HURRICANE (COLLECTIVELY WITH THE WEBSITE, THE “SERVICE”). BY REGISTERING FOR AND/OR USING BRAIN HURRICANE.COM OR THE SERVICE IN ANY MANNER, INCLUDING BUT NOT LIMITED TO VISITING OR BROWSING BRAIN HURRICANE.COM, YOU AGREE TO BE BOUND BY THIS AGREEMENT.  THIS AGREEMENT APPLIES TO ALL USERS OF THE WEBSITE OR SERVICE, INCLUDING USERS WHO ARE ALSO CONTRIBUTORS OF INFORMATION AND OTHER MATERIALS ON BRAIN HURRICANE.COM.

The Website and Service is offered subject to acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on brainhurricane.com, each of which is incorporated by reference and each of which may be updated by BRAIN HURRICANE from time to time without notice to you.  In addition, some services offered through the Website or Service may be subject to additional terms and conditions promulgated by BRAIN HURRICANE from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.

Any modifications to the Terms of Service will be brought to your attention by email to the address you used to register for the Website and by posting at brainhurricane.com.  Such modifications will be effective immediately, and will apply to disputes arising under the Terms of Service from the date of posting of the modified Terms of Service forward.  Your continued use of BRAIN HURRICANE after a modification has been made to the Terms of Service constitutes your acceptance of such modification.

2. Closed Beta Test.

BRAIN HURRICANE is conducting a limited, closed, pre-release beta test of brainhurricane.com (the “Beta Test”) in order to allow a limited number of people to test the features, capabilities, and performance of brainhurricane.com.

1. Beta Test Obligations.

You hereby agree to test, evaluate and analyze the Website and specific aspects of brainhurricane.com as identified by BRAIN HURRICANE, and to provide feedback, analysis, suggestions and comments to BRAIN HURRICANE as reasonably requested by BRAIN HURRICANE or as otherwise voluntarily provided by you (collectively, “Feedback”). 

1. Confidentiality Obligations.

YOU MAY DISCLOSE THAT THE BETA TEST EXISTS AND THAT YOU ARE PARTICIPATING IN IT, HOWEVER, YOU AGREE THAT YOU WILL NOT PUBLISH, DISCLOSE, DISTRIBUTE, TRANSMIT, POST OR OTHERWISE MAKE AVAILABLE, DIRECTLY OR INDIRECTLY, IN ANY WAY, ANY BRAIN HURRICANE CONFIDENTIAL INFORMATION (“CONFIDENTIAL INFORMATION”), AS DEFINED BELOW, EXCEPT AS REQUIRED BY A JUDICIAL OR GOVERNMENTAL ORDER AS SET FORTH BELOW, UNTIL AND UNLESS BRAIN HURRICANE AUTHORIZES YOU TO DO SO IN WRITING.  

Confidential Information includes any and all information relating to, contained in, or relayed through BRAIN HURRICANE during the Beta Test, including but not limited to information relating to the performance, capabilities and contents of brainhurricane.com, your feedback, any other Beta Test participant's feedback, and any other information relating to, contained in, or relayed through BRAIN HURRICANE during the Beta Test.

You may disclose Confidential Information in accordance with a judicial or governmental order provided that, (a) you give BRAIN HURRICANE prompt written notice of such order so we have the opportunity to seek a protective order or other appropriate remedy to such order, (b) you provide BRAIN HURRICANE with all reasonable assistance in opposing such required disclosure or seeking a protective order or other appropriate remedy, and (c) you disclose only such portion of the Confidential Information as is either permitted by BRAIN HURRICANE or required by the court, tribunal, governmental agency or other authority, subject to any protective order other appropriate remedy.

3.          Registration and Eligibility.

By becoming a BRAIN HURRICANE member (“Member” or “User”), you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your registration for brainhurricane.com does not violate any applicable law or regulation in your jurisdiction.  BRAIN HURRICANE may, in its sole discretion, refuse to offer the Website or Service to any person or entity and change its eligibility criteria at any time.  This provision is void where prohibited by law and the right to access the Website or Service is revoked in such jurisdictions.

4. Age Restrictions.

By using and accessing the Website and Services you hereby acknowledge, represent and warrant to BRAIN HURRICANE that, if you are under eighteen (18) years of age, you have your parent’s or legal guardian’s full consent, agreement and acknowledgement to use and access the Website and Services and they represent and warrant, on your behalf, that they possess the legal right and ability to enter into this Agreement and do so on your behalf.

5. User Accounts.
   1. Account Creation.

Each User of Wowzers.com will be required to create a user account (“Account”).  If you create an Account, you agree to provide current, complete, true and accurate information, and agree to update this information should it change.  You agree that we may limit the number of Accounts you are able to create.

1. Account Security.

YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR PASSWORD, AND FOR ANY AND ALL ACTIVITIES THAT OCCUR IN ASSOCIATION WITH YOUR ACCOUNT, WHETHER OR NOT AUTHORIZED BY YOU.  YOU MAY NOT USE ANYONE ELSE’S ACCOUNT, AND YOU MAY NOT ALLOW ANYONE ELSE TO USE YOUR ACCOUNT EXCEPT AS EXPLICITLY ALLOWED BY BRAIN HURRICANE.

You agree to notify us immediately of any compromise of your password, unauthorized use of your Account, or any other breach of security and to provide properly documented evidence as requested by us.  You agree that you will be liable for losses incurred by us or another party due to someone else using your Account or password.  You agree that we will not be liable for any loss you may incur as a result of someone else using your password or Account, either with or without your knowledge.   

1. Account Suspension and Termination.

YOU UNDERSTAND AND AGREE THAT WE may, AT OUR SOLE DISCRETION and at any time, terminate AND/OR suspend your BRAIN HURRICANE.COM Membership Account for ANY REASON OR NO REASON, INCLUDING BUT NOT LIMITED TO FOR violation of these terms of service or VIOLATION OF any other policy related to BRAIN HURRICANE.com, with or without notice to you.  You agree that WE shall not be liable for any loss or damage caused, directly or indirectly, by any such termination and/OR suspension.  IN THE EVENT THAT YOUR ACCOUNT IS TERMINATED, YOU WILL HAVE NO FURTHER ACCESS TO BRAIN HURRICANE.COM.

            5.4       No Right to Account Ownership. 

YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN YOUR USER ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO YOUR USER ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF BRAIN HURRICANE.

6. Intellectual Property.

1. Intellectual Property Rights.

“Content” shall mean all digital material on Wowzers.com or the Service including, without limitation, software, illustrations, documentation, information, music, pictures, images, textures, photographs, animations, three-dimensional models, video, audio, text, and all other digital material.  All Content is protected by both United States law, as well as the laws of various international jurisdictions, including, but not limited to copyright laws, Trademark law, patent law trade secret law and various governmental treaties.  BRAIN HURRICANE and any agents, affiliates, and licensors relevant thereto (collectively, “BRAIN HURRICANE”) owns all right, title and interest in and to the Content.  Except for any rights specifically enumerated as being licensed to you hereunder, BRAIN HURRICANE reserves any and all of its rights to the Content.

You acknowledge and agree that except as set forth herein, all rights, title and interest in and to the Website and in and to all Content are and shall remain the exclusive property of BRAIN HURRICANE and/or BRAIN HURRICANE’s licensors.  Except as expressly provided herein, BRAIN HURRICANE and/or its licensors do not grant you any express or implied rights in and/or to the Content and/or the Website and/or Services, and all right, title and interest are retained by BRAIN HURRICANE and/or its licensors.  You acknowledge that all Content accessed by you using the Website or the Service is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.

1. No Rights to Data.

These Terms of Service are not intended to and do not transfer any right, title or interest in the Content to you.  The limited rights granted herein solely relate and involve the specific rights of BRAIN HURRICANE listed hereinbelow and do not extend to other intellectual property rights or interests that exist now or may exist in the future, such rights being fully and completely reserved.  Furthermore, BRAIN HURRICANE retains sole and complete right, title and interest in and to the Website, Services or other Content, as well as any and all ancillary intellectual property related thereto.

1. Specific License and Restrictions.

Free of any associated charge or cost to you, BRAIN HURRICANE hereby grants you a non-exclusive, non-transferable, limited right license to access, use and display the Services or the Website specifically for personal, non-commercial use only.  If at any time, in BRAIN HURRICANE’s sole discretion, it is determined that you are utilizing the Website or Services in a manner inconsistent with personal and non-commercial use, or if you otherwise fail to fully comply with these Terms of Service, BRAIN HURRICANE may terminate your license to use the Website and Services without notice.  This license is fully and completely revocable at any time by BRAIN HURRICANE, with or without notice and for any or no reason.  BRAIN HURRICANE makes no warranty as to suitability or use of the Website or Services and limited license granted herein and you acknowledge, agree and otherwise consent that BRAIN HURRICANE shall have no liability arising from or in connection with your use of the Website or Services.

BRAIN HURRICANE may design or otherwise configure the Website or Services to include certain methods that enable BRAIN HURRICANE to identify the specific version of the Website or Services being used by your account.   Said configurations may provide BRAIN HURRICANE with the ability to amend change or update the version of the Website or Services being utilized without any further notice or interaction with you.  In order to do this BRAIN HURRICANE retains the right to poll or otherwise access your user account or preferences in order to provide the updated versions of the Website or Services automatically in the most seamless and expeditious manner possible.

By use of the Website or Services you acknowledge, agree and otherwise consent not to engage in, permit another person or entity to engage, or otherwise be related to or a part of the following restricted activities: (i) market, share, distribute, offer to sell, sell or otherwise make reproductions or copies of the Website or Services in any way inconsistent with the rights of use provided by the license herein; (ii) remove any applicable, relevant identification, copyright, trademark or other notices relating to the intellectual property or other property of BRAIN HURRICANE; (iii) attempt to access source or object code of the Website or Services, by methods including reverse engineering or otherwise reducing it to a form readable without the use of a computer, except and unless any applicable statutes or laws specifically prohibit said restrictive language; (iv) amend, change, modify (including the creation of any derivative or other works) the Website or Services; (v)  attempt to disable any digital rights management or copy protection aspects of the Website or Services, not already specifically prohibited by existing laws; (vi) create code, software or other program that incorporates any elements of the Website or Services; (vii) attempt to hack into, compromise or otherwise access the object or source code of the Website or Services for any purposes, personal or commercial, without the express written permission of BRAIN HURRICANE; or (viii) interrupt or attempt to interrupt the operation of the Website or Services in any way.  To the extent that you fail to comply with the prohibitions listed above, you agree, without any further compensation or remuneration to assign, give or otherwise transfer all concepts and ideas, and all materials, products, related modifications thereto and any independent intellectual property rights developed or prepared by or for you in connection with the Website or Services including without limitation all text, images, music, audio, video and other information, Website frames, and all HTML, Java, flash or other code relating thereto, as the exclusive property of BRAIN HURRICANE, and all right, title and interest thereto shall vest in BRAIN HURRICANE and they shall be deemed to be a “work made for hire” and made in the course of services rendered hereunder.  To the extent that title to any such works may not, by operation of law, vest in BRAIN HURRICANE or such works may not be considered works made for hire, all right, title and interest therein are hereby irrevocably assigned to BRAIN HURRICANE.  In the event that you engage any person, other than a regular employee, to design or develop the above listed elements, you will require each such person to execute a written agreement assigning all rights in the work performed by such person in connection with these terms to BRAIN HURRICANE.  All elements shall belong exclusively to BRAIN HURRICANE with BRAIN HURRICANE having the right to obtain and hold in its own name all copyright, patent, and trademark registrations, and such other protections as may be appropriate to the subject matter, and any applications, extensions, continuations and renewals thereof and all merchandising rights therein.  Moreover, you agree to give BRAIN HURRICANE and any person designated by it, any reasonable assistance required to perfect the rights defined in this section.

You agree not to use bots, spiders or other intelligent agent software or methods for any purpose other than accessing publicly posted portions of the Website or Services and then only for the purposes consistent with these Terms of Service.

IN ACCORDANCE WITH AND NOT INTENDING TO LIMIT ANY OF THE PROVISIONS OR PROTECTIONS PREVIOUS SET FORWARD, DUPLICATION, COPYING OR ANY FORM OF REPRODUCTION OF WEBSITE, SERVICES OR RELATED INFORMATION, MATERIALS OR OTHER CONTENT TO ANY OTHER SERVER OR LOCATION FOR THE PURPOSES OF DUPLICATION, COPYING OR ANY OTHER FORM OF REPRODUCTION IS EXPRESSLY AND EXPLICITLY PROHIBITED.

1. Your Grants of Rights.

You acknowledge that BRAIN HURRICANE does not solicit the submission of Content from users of Wowzers.com However, to the extent you submit any Content you acknowledge and agree that you automatically grant (and represents and warrant that you have the right to grant) the following:

1. a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to BRAIN HURRICANE to use, reproduce, distribute, remove, and analyze any of your Content as BRAIN HURRICANE may deem necessary or desirable for any purpose in connection with the operation of the Service, including but not limited to for purposes of creating, providing, managing, debugging, testing and/or providing support for brainhurricane.com, and
2. a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to BRAIN HURRICANE to copy, modify, and reproduce your Content for marketing and/or promotional purposes in connection with BRAIN HURRICANE in any media, whether presently known or unknown,
3. a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to each user of Wowzers.com and/or the Service to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such Content solely for personal, non-commercial use, and
4. except as set forth herein, the perpetual and irrevocable right to BRAIN HURRICANE to delete any or all of your Content from BRAIN HURRICANE.com, whether intentionally or unintentionally, for any reason or no reason, without any liability of any kind to you or to any other party.

7. Service Termination, Suspension and Changes.

BRAIN HURRICANE reserves the right to TERMINATE, SUSPEND, OR change any service or feature of BRAIN HURRICANE.com at any time, for any reason or no reason, with or without notice to you.  You agree that BRAIN HURRICANE shall not be liable for any loss or damage caused, directly or indirectly, by any such termination, suspension, OR change.  IN THE EVENT THAT BRAIN HURRICANE.com IS TERMINATED, SUSPENDED, OR CHANGED, YOU WILL NOT RECEIVE ANY REFUND.

8. Rules of Conduct.

You agree that you will not: 

1. Violate any applicable laws or regulations, or promote or encourage any illegal activity.
2. Impersonate another User or create a false identity, including but not limited to identities falsely indicating that the User is another brainhurricane.com User, a celebrity or other well known person, or a BRAIN HURRICANE representative.
3. Collect in any manner information regarding any User of brainhurricane.com, or other information regarding brainhurricane.com or any part thereof, or distribute such information to any third party.
4. Gain or attempt to gain unauthorized access to brainhurricane.com, to unpublished information or material, to other Users’ Account information, or to computer systems and/or networks connected to brainhurricane.com, such as through hacking, phishing, password mining, social engineering, and/or any other method to gain or attempt to gain unauthorized access.
5. Make false reports to brainhurricane.com administrators. 
6. Publish, post, upload, transmit, distribute, disseminate or otherwise make available at brainhurricane.com any hacks, exploits, cheats, bots, automation software, mods or any other unauthorized third-party software designed to modify the brainhurricane.com experience without the prior express written consent of BRAIN HURRICANE.
7. Take any action that imposes or may impose (as determined by BRAIN HURRICANE in its sole discretion) an unreasonable or disproportionately large load on BRAIN HURRICANE’ (or its third party providers’) infrastructure.
8. Resell or make any commercial use of brainhurricane.com without the prior express written consent of BRAIN HURRICANE. 
9. Engage in fraudulent transactions. 
10. Offer to transfer, buy, auction, rent, lease, loan or sell access to your brainhurricane.com Account.   
9. Jurisdictional Issues and Export Control Laws.

Wowzers.com is controlled and operated by BRAIN HURRICANE from its offices within the United States.  We make no representation that brainhurricane.com or the Service are appropriate or available for use in other locations.  Those who choose to access brainhurricane.com or the Service from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.

You agree not to use or otherwise export or re-export the Website or Service except as authorized by United States law and the laws of the jurisdiction in which the Website or Services was obtained.  Without limited the foregoing, the Website or Services may not be exported or re-exported (a) into (or to a national resident of) any U.S. embargoed countries (currently Cuba, Iran, Myanmar (Burma), North Korea, Sudan and Syria) or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.  By accessing and using the Software, you represent and warrant that you are not located in, under control of, or a national resident of any such country or on any such list.

10. Links to Third-Party Sites.

Wowzers.com may link to third party sites (“Linked Sites”).  These Linked Sites are not controlled by BRAIN HURRICANE and we are not responsible for the information of the Linked Sites, for the business practices or privacy policies of the Linked Sites, or for the collection, use or disclosure of any information by the Linked Sites.  BRAIN HURRICANE provides links to the Linked Sites only as a matter of convenience, and the inclusion of any link does not imply an endorsement by BRAIN HURRICANE of any Linked Site.

11. Code of Conduct.

Please read the BRAIN HURRICANE Code of Conduct currently at:________________  The BRAIN HURRICANE Code of Conduct accessible by the above hyperlink is fully incorporated herein by this reference as though it were specifically and completely set forth herein.  By accessing and using the Website and Service, you signify your acknowledgement, agreement and consent to the BRAIN HURRICANE Code of Conduct.  Therefore, if you do not fully agree and consent to the BRAIN HURRICANE Code of Conduct, press the “CANCEL” button below and do not set up a user account or otherwise use the Software.  We reserve the full right, power and authority to amend, modify, change, add or delete provisions or sections of the BRAIN HURRICANE Code of Conduct at any time with or without a reason.  Therefore, please periodically continue to check the BRAIN HURRICANE Code of Conduct on the Website for any changes.  Your continued use of the Website and Services following any posted modifications shall demonstrate your acknowledgement, acceptance and consent to said changes.

12. Disclaimer of Warranty; Limitation of Liability.

To the maximum extent allowed by law, neither BRAIN HURRICANE nor its affiliates, subsidiaries, officers, directors, stockholders, employees, licensors, distributors, sublicensees, agents or subcontractors (collectively, the “BRAIN HURRICANE Parties”) warrant any connection to, transmission over, or results or use of, any network connection or facilities provided or failed to be provided through brainhurricane.com or the Service.  You are responsible for assessing your own computer and transmission network needs, and the results to be obtained therefrom.   

YOU EXPRESSLY AGREE THAT THE USE OF THE WEBSITE AND THE SERVICE IS AT YOUR SOLE RISK.  BRAIN HURRICANE.COM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES OR CONDITIONS ARE LEGALLY INCAPABLE OF EXCLUSION.  BRAIN HURRICANE PROVIDES BRAIN HURRICANE.COM ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE WEBSITE AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT BRAIN HURRICANE WILL HAVE ADEQUATE CAPACITY FOR BRAIN HURRICANE.COM AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.  BRAIN HURRICANE ASSUMES NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY YOU, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF USE OF BRAIN HURRICANE.COM, OR ANY OTHER LOSS FROM DELAYS, NONDELIVERIES, ERRORS, SYSTEM DOWN TIME, MISDELIVERIES OR SERVICE INTERRUPTIONS CAUSED BY BRAIN HURRICANE, BY THIRD PARTIES, OR BY YOU OR OTHER BRAIN HURRICANE.COM USERS. 

THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS SECTION APPLY TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF BRAIN HURRICANE, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.

YOU ACKNOWLEDGE AND AGREE THAT TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW THE BRAIN HURRICANE PARTIES ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON THE WEBSITE OR BY USE OF BRAIN HURRICANE.COM, THE SERVICES OR ANY RELATED PRODUCTS.  YOU ACKNOWLEDGE AND AGREE THAT YOUR EXCLUSIVE REMEDY FOR ANY DISPUTE WITH BRAIN HURRICANE IS TO STOP USING BRAIN HURRICANE.COM, AND TO CANCEL YOUR ACCOUNT(S).  IN NO CASE SHALL ANY LIABILITY OF THE BRAIN HURRICANE PARTIES TO YOU EXCEED FIFTY DOLLARS ($50).  IN NO CASE SHALL THE BRAIN HURRICANE PARTIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF BRAIN HURRICANE.COM, THE SERVICES, THE PRODUCTS, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF BRAIN HURRICANE.COM OR INTERACTIONS WITH BRAIN HURRICANE. 

BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF BRAIN HURRICANE AND THE BRAIN HURRICANE PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

THE BRAIN HURRICANE PARTIES MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE PRODUCTS, GAMES, INFORMATION AND/OR RELATED GRAPHICS PUBLISHED AS PART OF BRAIN HURRICANE.COM FOR ANY PURPOSE.  THE PRODUCTS, GAMES, INFORMATION AND RELATED GRAPHICS PUBLISHED AS PART OF BRAIN HURRICANE.COM MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. 

BRAIN HURRICANE EXPRESSLY DISCLAIMS ALL REPRESENTATION AND WARRANTIES REGARDING PRODUCTS, GOODS OR SERVICES YOU OBTAIN FROM THIRD PARTIES DURING YOUR USE OF BRAIN HURRICANE.COM. YOU AGREE TO LOOK SOLELY TO THIRD PARTIES FOR ANY AND ALL CLAIMS REGARDING SUCH TRANSACTIONS WITH THIRD PARTIES.

YOU ACKNOWLEDGE THAT, TO THE EXTENT ALLOWABLE UNDER APPLICABLE LAW, BRAIN HURRICANE SHALL NOT BE LIABLE TO YOU FOR THE LOSS OF ANY DATA OR ELECTRONIC FILES, FOR ANY REASON WHATSOEVER.

Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. California residents expressly agree to waive California Civil Code Sec. 1542, which states: “A general release does not extend the claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

13. Termination.

These Terms of Service set forth herein continue to remain in full force and effect until such time as terminated by either party.  BRAIN HURRICANE reserves the right, in its sole discretion and without notice, to immediately terminate your user account and access to any or all of the Website, related Services or any portion thereof, at any time without further notice.  Likewise, you retain full discretion to end or terminate your user account and discontinue use of the Website or Service at any time, pursuant to the terms of this Agreement.

14. Assignment.

BRAIN HURRICANE may assign these Terms of Service, in whole or in part, at any time.  Notwithstanding, you may not assign, transfer or sublicense any or all of your rights or obligations under these Terms of Service without BRAIN HURRICANE’ express prior written consent.

15. Indemnity.

You agree to defend, indemnify and hold harmless BRAIN HURRICANE from and against all claims, losses, costs and expenses (including without limitation court costs and attorneys fees) arising out of (a) your use of, or activities in connection with the Website or Service; (b) any violation of these Terms of Service by you or through your Account; or (c) any allegation that any Content that you make available via brainhurricane.com infringes or otherwise violates the copyright, trademark, trade secret, privacy or other intellectual property or other rights of any third party.

16. Dispute Resolution.

A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and BRAIN HURRICANE agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.  You agree that the provisions in this paragraph will survive any termination of your account(s) or the Website or Service.

By your access of and use of the Website and Service you hereby specifically acknowledge, agree and consent that you waive your right to a trial, by jury or otherwise, and that you agree that any suit, action, proceeding, dispute, controversy or claim (“Dispute”) arising out of or relating to this Agreement or any of the transactions contemplated herein or related to the Website or Service (including without limitation, statutory, equitable or tort claims) will be dealt with in accordance with the following procedures.  All parties shall first attempt to negotiate all Disputes informally for at least thirty (30) days before initiating any arbitration.  Such informal negotiations shall commence following the receipt of a notice in writing by one of the parties sent to the other.  BRAIN HURRICANE will send its notice to your billing address and email you a copy to the email address you have provided to us.  You may send any notice to BRAIN HURRICANE to the address listed below.  

If the Dispute is not resolved through informal negotiations the Dispute (except those Disputes expressly excluded below) shall be finally and exclusively resolved by binding arbitration before a sole arbitrator.  YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.  If you are a resident of the United States, any arbitration will take place at any reasonable location within the United States convenient for you.  For residents outside the United States, any arbitration shall be initiated in Cook County, Illinois, using the English language in accordance with the Commercial Arbitration Rules and Procedures of the American Arbitration Association (“AAA”) then in effect, by one arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of AAA arbitrators. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by an arbitrator rather than a court.  The prevailing party in any arbitration or other proceeding arising under these Terms of Service shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith.  Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.  Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator.  Use of the Website Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Service, including without limitation, this section.

The parties agree that any arbitration shall be limited to the Dispute between you and BRAIN HURRICANE individually.  To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

17. Jurisdiction and Choice of Law.

To the extent not covered by the Dispute Resolution provisions above, any disputes between you and BRAIN HURRICANE shall be subject to the exclusive jurisdiction and venue of the courts located in Chicago Illinois, and shall be governed by, and will be construed under, the law of the United States of America and the law of the State of Illinois, without regard to choice of law principles.  The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.  You agree that if you choose to access brainhurricane.com from outside of the United States, other laws may apply and those laws shall affect this Agreement only to the extent required by such jurisdiction.  In such a case, this Agreement shall be interpreted to give maximum effect to the terms and conditions hereof.

18. Termination of Agreement and Survivability of Terms.

This Agreement is effective until terminated.  BRAIN HURRICANE may terminate this Agreement with or without notice to you by terminating your Account as set forth herein.  You may terminate this Agreement and your Account by following the procedures set forth herein or on the BRAIN HURRICANE website.  The provisions of Sections 1, 2, 5 through 7, 9 and 13 through 21 shall survive any termination of this Agreement.

19. Severability

If any part of these Terms of Service are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Service shall continue in effect. 

20. Complete Agreement

These Terms of Service, including the documents expressly incorporated by reference, constitute the entire Agreement between you and BRAIN HURRICANE with respect to its subject matter.  This Agreement supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and BRAIN HURRICANE with respect to its subject matter and you represent that you have not relied on any such communications in accepting this Agreement.

21. General Provisions.

Our performance of these Terms of Service is subject to existing laws and legal process, and nothing contained in these Terms of Service is in derogation of our right to comply with governmental, court, and law enforcement requests or requirements relating to your use of brainhurricane.com or information provided to or gathered by BRAIN HURRICANE with respect to such use. 

Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.

No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.

Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of BRAIN HURRICANE shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of BRAIN HURRICANE. 

The parties hereby acknowledge and agree that BRAIN HURRICANE would be irreparably damaged if these Terms of Service were not specifically enforced.  Therefore BRAIN HURRICANE shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms of Service, in addition to such other remedies as BRAIN HURRICANE may otherwise have available to it under applicable laws. 

The parties agree that all correspondence relating to this Agreement shall be written in the English language.

Contact

You may contact BRAIN HURRICANE at the following address:

Wowzers LLC

1 E. Erie Street

Suite 480

Chicago, Illinois 60611

You may also telephone us at 312.572.9699.

I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF SERVICE AND AGREE THAT MY USE OF THE WEBSITE AND THE SERVICE IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS OF SERVICE.

If at any time you wish to obtain an additional copy of the above Terms of Service, please visit the Website www.brainhurricane.com and again review or print the Terms of Service.

Effective Date: May 7, 2011