Terms of Use

Last Updated: August 2, 2020

These Terms of Use (“Terms”) apply to the website located at BrainPowerTest.com and all other sites, mobile sites, services, applications, platforms and tools where these Terms appear or are linked (collectively, the “Sites”) and Brain Power Testing, Inc.’s various lines of testing services  (collectively, “Products”). As used in these Terms, “Brain Power”, “us”, “we” or “our” refer to Brain Power Testing, Inc., its subsidiaries, and affiliates.

Ownership of Sites; Agreement to Terms of Use

The Sites are property of Brain Power Test.

PLEASE READ THESE TERMS CAREFULLY AS THEY AFFECT YOUR LEGAL RIGHTS. THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN A JURY OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SITES.

BY ACCESSING OR OTHERWISE USING THE SITES YOU AGREE TO BE BOUND BY THESE TERMS. DO NOT USE THE SITES UNTIL YOU HAVE READ THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SITES. If you have any questions about the Terms, please contact us at support@brainipowertest.com.

Nature of Products and Services

The Sites allow you to learn about and purchase Brain Power’s Products.  Brain Power provides several services to you throughout this process including, but not limited to, online chat, e-mail and telephone assistance, mobile applications, order processing and shipping (collectively, “Brain Power Services”). The use of these Sites, Brain Power Services and any Products is subject to the Terms set forth herein.

Privacy

For information on privacy, please review our Privacy Policy, which also governs your use of the Sites, to read about how we collect and use information about you.

Electronic Communications

Electronic communication takes place when you visit the Sites, send us e-mails, text messages, chat with us on the Sites, or communicate with us in any way from your desktop or mobile device. By taking part in these activities, you consent to receive electronic communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages through the Sites or other Brain Power Services. You can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other electronic communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.

Intellectual Property

All content included on the Sites, on or in any Products or Brain Power Services such as text, graphics, logos, photographs, drawings, designs, other images, audio clips, video, animation, data, music, software, application updates, and other material (collectively "Content") is owned or licensed property of Brain Power and is protected by copyright, trademark, patent, or other intellectual property rights and unfair competition laws. Brain Power expressly reserves all intellectual property rights in all Content.

The collection, arrangement, and assembly of all Content on the Sites is the exclusive property of Brain Power and protected by U.S. and international copyright laws. Except as expressly provided in these Terms, no part of the Sites and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including "mirroring") to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without Brain Power’s express prior written consent.

If you believe that there is content on the Site that infringes on material you own, please contact Brain Power at support@brainpowertest.com.

Please contact support@brainpowertest.com if you have questions about our Content or intellectual property, or its use.

License

Brain Power grants you a limited license to access and make personal use of the Sites and the Content for NONCOMMERCIAL PURPOSES ONLY and only to the extent such use does not violate these Terms including, without limitation, the prohibitions listed in the "Use of Sites" section of these Terms. You may use Content for personal, noncommercial purposes only, provided you do not modify or alter the Content in any way, delete or change any copyright or trademark notice, or violate these Terms in any way. Use of the Sites or any of the Content on the Sites for any commercial purpose, whether on behalf of yourself or on behalf of any third party, constitutes a material breach of these Terms.

Your Account

You may need to create an account with Brain Power to use certain Brain Power Services or to purchase Products. The account will require you to provide a valid form of payment to make purchases. You are solely responsible for maintaining the confidentiality of your account, your payment information, your username, and your password and for restricting access to your account. You agree to accept all responsibility for the activities that occur under your account and password. Should you wish to delete your account with Brain Power, you can do so by following these steps: 

- Email support@brainpowertest.com to notify us that you would like to delete your account.

- Once your account has been deleted, you will receive a confirmation email.

The Sites are intended for use by individuals 10 years of age or older. If you are under 18 years of age, you may use the Sites only with involvement and consent of a parent or guardian. By using the Sites, you agree that you have involved and received consent of a parent or guardian.

Brain Power reserves the right, without notice and at its sole discretion, to terminate your account or your use of the Sites and to block or prevent future access to and use of the Sites (i) if you violate any of these Terms, or (ii) for any other reason deemed necessary and appropriate in Brain Power’s sole discretion. Upon any such termination, your right to use the Sites will immediately cease.

You agree that we shall not be liable to you or any third party for any termination of your access to the Sites. Upon termination, all provisions of these Terms which are by their nature intended to survive termination, all representations and warranties, all limitations of liability and all indemnities shall survive such termination.

Use of Sites

The Sites may only be used for lawful purposes in accordance with the terms of the license granted in these Terms. You warrant to Brain Power that you will not use the Sites or any Content for any unlawful purpose or otherwise prohibited by these Terms, or to solicit the performance of any illegal activity or other activity which infringes the rights of Brain Power or others.

You may not, by yourself or on behalf of a third party:

• Make any use of data extraction, scraping, mining, or other data gathering tools, or create a database by systematically downloading or storing Sites content, or otherwise scrape, collect, store, or use any Content, product listings, descriptions, prices, or images, except pursuant to the limited license granted by these Terms;
• collect personally identifiable information about other users of the Sites;
• conduct fraudulent activities on the Sites;
• make any commercial use of the Sites or its Content, including making any collection or use of any product listings, descriptions, prices, or images;
• download, copy, or transmit any Content for the benefit of any other merchant;
• use or attempt to use any engine, software, tool, agent, data, or other device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to search the Sites other than the search engine and search agents provided by Brain Power or generally publicly available browsers;
• frame, mirror, or use framing techniques on any part of the Sites without Brain Power’s express prior written consent;
• use any meta tags or any other hidden text utilizing Brain Power’s name or marks;
• misrepresent the identity of a user, impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Sites, or express or imply that we endorse any statement you make;
• violate or attempt to violate the security of the Sites, including, without limitation: (i) accessing data not intended for you or logging onto a server or an account that you are not authorized to access; (ii) trying to change the behavior of the Sites; (iii) attempting to probe, scan, or test the vulnerability of a system or network connected to the Sites, or to breach security or authentication measures on the Sites or any network connected to the Sites; (iv) attempting to interfere with service to any user, host, or network, including, without limitation, via means of submitting malware to the Sites, overloading, "flooding," "spamming," "mailbombing," or "crashing"; (v) forging any header or any part of the header information in any email or posting; or (vi) forging communications on behalf of the Sites (impersonating the Sites) or to the Sites (impersonating another user);
• send unsolicited or unauthorized email on behalf of Brain Power;
• tamper with the Sites or use or attempt to use any device, software, routine, or data that interferes or attempts to interfere with the working or functionality of the Sites or any activity being conducted on the Sites;
• use the Sites to defame, slander, abuse, harass, stalk, threaten, or otherwise violate the legal rights of any other person or organization, including others’ privacy rights or rights of publicity;
• use the Sites to post obscene, pornographic, profane or otherwise unlawful or indecent material;
• restrict or inhibit any other person from using the Sites (including, without limitation, by hacking or defacing any portion of the Sites);
• use the Sites to advertise without Brain Power’s express prior written consent;
• reproduce, duplicate, copy, sell, resell, or otherwise exploit for any commercial purposes any portion of, use of, or access to the Sites;
• modify, adapt, reverse engineer, decompile, or disassemble any portion of the Sites; or
• remove any copyright, trademark, or other proprietary rights notice from the Sites or materials originating from the Sites.

Content Submitted to Sites

Brain Power welcomes reviews and will occasionally allow users to submit comments, reviews, photos, videos or other content to the Sites, submit suggestions, ideas, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights (including publicity rights), or otherwise injurious to third parties or objectionable, and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam" or unsolicited commercial electronic messages. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of the content. Brain Power reserves the right (but not the obligation) to remove or edit such content.

By submitting content on the Sites, you grant Brain Power the right to reproduce, distribute, display, transmit, communicate, and derive other works from your post. Additionally, you grant Brain Power a royalty-free license to use the name image or likeness of a person identifiable in the review. By posting, you waive any and all rights under copyright law, right of publicity law, privacy law, and other legal rights (in addition to any “moral rights” that you may have in your posting). Finally, by submitting a review, you are agreeing that you are the sole and exclusive owner of the review(s) that you post; that by posting you are not infringing or violating the rights of any party (intellectual or proprietary).

Brain Power reserves the right to remove reviews as deemed necessary without an obligation to notify the reviewer.

Risk of Loss

The risk of loss for and title to the Products purchased on the Sites will pass to the purchaser upon shipment of the Products from Brain Power’s location.

Pricing and Payment

Our Products and pricing are displayed on the Sites. Prices, including all applicable taxes, will be displayed on the Sites before you make a purchase. 

Payments submitted through our website are processed by a third-party immediately after payment is received. Payments may be accepted by Visa, Mastercard, American Express and Discover. 

Returns, Refunds and Cancellations

A Products order may be cancelled at any time prior to use. Refunds will be processed in the form of the original payment. Products purchased with a promo code will not be refunded or credited back the amount of the promo code.

If you want a refund, contact support@brainpowertest.com

Products Descriptions and Warranty

Brain Power endeavors to describe all our Products as accurately as possible. However, we do not warrant that Products descriptions are error-free. If Products you purchase are not as originally described and has not been used, your sole remedy is to obtain a Product refund in 60 days.

Disclaimers

ALL INFORMATION, CONTENT, MATERIAL, BRAIN POWER SERVICES AND PRODUCTS ON THE SITES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. BRAIN  POWER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE INFORMATION, CONTENT, MATERIAL, OPERATION OF THE SITES, OR ANY BRAIN POWER SERVICES OR PRODUCTS MADE AVAILABLE TO YOU, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITES, PRODUCTS OR BRAIN POWER SERVICES ARE DONE SOLEY AT YOUR OWN RISK.

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, BRAIN POWER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY AND OTHER WARRANTIES, GUARANTEES, OR REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT OF PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BRAIN POWER DOES NOT WARRANT OR GUARANTEE THAT THE SITES OR ANY OTHER INTERNET BASED PRODUCTS, SOFTWARE, WEBSITES, APPLICATIONS, OR OTHER SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE, OR ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU UNDERSTAND AND AGREE THAT IF YOU DOWNLOAD OR OTHERWISE OBTAIN INFORMATION, CONTENT, MATERIALS, SOFTWARE, PROGRAMS OR BRAIN POWER SERVICES, YOU DO SO AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES THAT MAY RESULT, INCLUDING LOSS OF DATA OR DAMAGE TO YOUR ELECTRONIC DEVICES. 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. 

Limitation of Liability

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, BRAIN POWER WILL NOT BE LIABLE TO ANY PARTY FOR ANY DAMAGES OF ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY TYPE, UNLESS OTHERWISE SPECIFIED IN WRITING, RELATED TO OR ARISING FROM THE SITES OR THEIR USE, OR ANY SITE OR RESOUCE LINKED TO, REFERENCED, OR ACCESSED THROUGH THE SITES, OR FOR THE USE OF OR DOWNLOADING OF, OR ACCESS TO, ANY INFORMATION, MATERIALS, PRODUCTS OR BRAIN POWER SERVICES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOST SAVINGS OR LOSS OF PROGRAMS OR OTHER DATE, EVEN IF BRAIN POWER IS EXPRESSLY ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. THIS EXCLUSION AND WAIVER OF LIABILITY APPLIES TO ALL CAUSES OF ACTION, WHETHER BASED ON CONTRACT, WARRANTY, TORT, OR ANY OTHER LEGAL THEORIES. 

BRAIN POWER DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITES AND ANY BRAIN POWER SERVICES OR PRODUCTS. 

YOUR SOLE REMEDY AGAINST BRAIN POWER FOR DISSATISFACTION WITH THE SITES OR PRODUCTS IS TO STOP USING THE SITES OR PRODUCTS AND, IF APPLICABLE, RETURN THE PRODUCTS DURING THE RETURN PERIOD.

If, notwithstanding the other provisions of these Terms, Brain Power is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Sites, Brain Power Services, Products or any Content, Brain Power’s liability shall in no event exceed the greater of (1) the total of any actual costs or fees charged with respect to any service or purchase made on the Sites, or (2) US $100.00. 

Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply to you.

Indemnity

As a condition to the use of the Sites, you agree to defend, indemnify and hold harmless Brain Power, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, vendors, suppliers, subsidiaries and affiliates from and against liabilities, demands, losses, investigations, inquiries, claims, suits, damages, costs and expenses (including attorneys’ fees), made against Brain Power by any third party due to or arising out of or in connection with your use of the Sites.

Dispute Resolution

Unless different rules and procedures apply to the Products you purchase, you agree that in the event of any dispute, claim, question, or disagreement arising from or relating to these Terms, the following rules and procedures shall apply.

Informal Dispute Resolution

In the event of any dispute, claim, question, or disagreement arising from or relating to these Terms you and Brain Power (collectively, the “Parties”) shall use best efforts to settle the dispute, claim, question, or disagreement. To this effect, the Parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties. 

To initiate this informal process, you must contact support@brainpowertest.com with a notice that contains your contact information, a brief written statement that contains the facts of the dispute, claim, question, or disagreement and the remedy sought.  Brain Power will contact you using the information provided in the notice within five (5) business days of receipt of the notice. If a resolution is not reached within sixty (60) days of the date of the notice, then, upon notice by either Party to the other, all disputes, claims, questions, or differences shall be finally settled by mandatory binding arbitration. 

Mandatory Arbitration

If a resolution of the dispute, claim, question, or disagreement is not made through informal dispute resolution process within sixty (60) days of the date of your notice, the Parties each agree that any claim or controversy arising out of or relating to these Terms shall be settled through final and binding arbitration, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. 

Claims shall be heard by a single arbitrator. Arbitration may be conducted by telephone, based on written submissions, or in-person in New Brunswick, Canada. The arbitration shall be governed by the applicable laws of Canada. The arbitration will be administered by the ADR Institute of Canada (ADRIC) under its applicable rules. ADRIC’s rules and fee information are available at https://adric.ca/.

Each Party shall bear its own costs and expenses and an equal share of the arbitrator’s and administrative fees of arbitration. Except as may be required by law, neither a Party nor the arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties. 

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow these terms as a court would. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. BY AGREEING TO RESOLVE YOUR CLAIM THROUGH ABITRATION, YOU UNDERSTAND THAT YOU FOREVER WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

Initiating Arbitration

To begin an arbitration proceeding, you must send notice at support@brainpowertest.comwith a copy to Brain Power’s registered agent, Blue Cross Centre, South Tower, Suite 400, 644 Main Street, Moncton NB E1C 1E2, within thirty (30) days of the expiration of the informal dispute resolution process requesting arbitration and describing the nature of the claim and remedy sought.

Applicable Law

By using this Site, any Brain Power Services or Products, you agree that applicable Canadian law, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between you and Brain Power.

Sites Policies, Modification and Severability

Brain Power may at any time: (i) modify or discontinue any part of the Sites, (ii) charge, modify or waive fees required to use the Sites; or (iii) offer opportunities to some or all Sites users. Brain Power reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time without notice or liability, and will be effective immediately upon being posted on the Sites. It is your responsibility to monitor the Sites for any changes to the Terms. Your continued use of the Sites and any Brain Power Services after changes shall be deemed an acceptance and agreement to the changes. The date of the last revision of the Terms is located at the top of these Terms.

In the event that any part of these Terms is deemed invalid, void, or unenforceable for any reason, only that part or section will be severed. This severing will not affect the continuing enforceability or validity of the remaining parts or sections.

Entire Agreement

These Terms constitute the entire agreement between you and Brain Power with respect to the Sites and Products and supersede all prior or contemporaneous communications relating to the Sites and Products. Any rights not expressly granted herein are reserved.

Miscellaneous

Failure to fully exercise any rights or waiver of any breath of these Terms by either Party will not prevent such Party's subsequent exercise of such right or be deemed a waiver by such Party of any subsequent breach by the other Party of the same or any other term of these Terms.

You agree that all information provided to Brain Power is true, accurate, current, and complete. Brain Power is not liable or responsible for delays in shipping or order processing where inaccurate, incomplete, or false information has been provided.

Our Contact Information

323 – 126C Hampton Road,
Rothesay, NB 
Canada E2E 2N6