The following terms and conditions (the "Terms and Conditions") govern your use of the Brainium.com Web Site (this "Site"). This Site is made available by Octonion ("Octonion" or "we" or "us"). We may change the Terms and Conditions from time to time, and at any time without notice to you, by posting such changes on this Site. BY USING THIS SITE, YOU ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS AS APPLIED TO YOUR USE OF THIS SITE. If you do not agree to these Terms and Conditions, you may not access or otherwise use this Site.
As between you and OCTONION, OCTONION owns, solely and exclusively, all rights, title and interest in and to this Site, all the content, code, data and materials thereon, the look and feel, design and organization of this Site, and the compilation of the content, code, data and materials on this Site, including but not limited to any copyrights, trademark and servicemark rights, patent rights, database rights, moral rights, sui generis rights and other intellectual property and proprietary rights inherent therein or appurtenant thereto. Your use of this Site does not grant to you ownership of any content, code, data or materials you may access on this Site. Any commercial distribution, publishing or exploitation of this Site is strictly prohibited. You may view the content on this Site on your computer or other internet-compatible device, and make copies or prints of the content on this Site for your non-commercial, educational or personal use only. Any copies you make must retain OCTONION's proprietary notices, including its copyright notice, and may not be altered in any manner. You may not otherwise copy, reproduce, publish, display, distribute or otherwise exploit any content, code, data or materials on this Site.
The trademarks, servicemarks and logos displayed on this Site are registered and unregistered trademarks or servicemarks of OCTONION and/or others. Nothing contained on this Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any trademark or servicemark displayed on this Site without the express written permission of OCTONION or such third party that may own such trademark or servicemark. Your misuse of the trademarks and servicemarks on this Site is strictly prohibited.
You acknowledge and agree that we have no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through web sites to which you may link from this Site (collectively, "Linked Sites"). Links to Linked Sites do not constitute an endorsement by us of such web sites or the information, content, products, services, advertising, code or other materials presented on or through such web sites. OCTONION shall not be held responsible should you encounter any material on Linked Sites that is or may appear indecent, illegal, or inaccurate.
THIS SITE, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, CONTENT, FUNCTIONS AND MATERIALS, IS PROVIDED "AS IS," "AS AVAILABLE", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THIS SITE SHALL CREATE ANY WARRANTY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE CONTENT OF THIS SITE IS DESIGNED TO PROVIDE INFORMATION ON MATTERS OF INTEREST AND THE SERVICES AVAILABLE FROM OCTONION ONLY, AND DOES NOT CONSTITUTE PROFESSIONAL ADVICE OF ANY KIND, NOR ANY OTHER ATTEMPT TO SOLICIT BUSINESS OR OFFER SERVICES. SINCE LAW AND REGULATIONS CHANGE CONTINUALLY AND ERRORS CAN OCCUR, THE INFORMATION ON THIS SITE MAY NEITHER BE UP TO DATE NOR ACCURATE. OCTONION ACCEPTS NO LIABILITY FOR ANY LOSS ARISING AS A RESULT OF ANY ACTION TAKEN OR REFRAINED FROM AS A RESULT OF INFORMATION CONTAINED ON THIS SITE OR ANY OTHER SITES TO WHICH THIS SITE MAY BE LINKED AND BDO SHALL HAVE NO OBLIGATION TO UPDATE THIS SITE. PLEASE CONTACT BDO FOR SPECIFIC ADVICE ON ANY AREA OF INTEREST. IF YOU ARE DISSATISFIED WITH THIS SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THIS SITE.
NOTHWITHSTANDING ANY PROVISION OF THESE TERMS AND CONDITIONS, IN NO EVENT SHALL OCTONION OR ANY OF ITS PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, OR CONTENT OR SERVICE PROVIDERS (COLLECTIVELY, THE "PROTECTED ENTITIES") BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THIS SITE OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS AND CONDITIONS OR YOUR USE OF THIS SITE EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO OCTONION DIRECTLY IN EXCHANGE FOR YOUR USE OF THIS SITE.
The Terms and Conditions and the relationship between you and us shall be governed by the laws of Switzerland, without regard to its conflict of law provisions.
If any provision of these Terms and Conditions shall be found to be unlawful, void or unenforceable for any reason, such provision shall be revised to the minimum extent required by applicable law for such provision to be enforceable and such revised provision shall be considered a part of these Terms and Conditions.
You agree that if any dispute, controversy or claim arises under the Terms and Conditions, and this Site in general, either party may, upon written notice to the other party, request facilitated negotiations. Such negotiations shall be assisted by a neutral facilitator acceptable to both parties and shall require the best efforts of the parties to discuss with each other in good faith their respective positions and, respecting their different interests, to finally resolve such dispute.
Each party may disclose any facts to the other party or to the facilitator, which it, in good faith, considers necessary to resolve the dispute. However, all such disclosures will be deemed in furtherance of settlement efforts and will not be admissible in any subsequent litigation against the disclosing party. Except as agreed by both parties, the facilitator shall keep confidential all information disclosed during negotiations. The facilitator shall not act as a witness for either party in any subsequent arbitration between the parties.
Such facilitated negotiations shall conclude within sixty days from receipt of the written notice unless extended by mutual consent. The parties may also agree at any time to terminate or waive facilitated negotiations. The costs incurred by each party in such negotiations will be borne by it; the fees and expenses of the facilitator, if any, shall be borne equally by the parties.
If any dispute, controversy or claim arises under the Terms and Conditions, and this Site in general, and cannot be resolved by facilitated negotiations (or the parties agree to waive that process) then such dispute, controversy or claim shall be settled by arbitration. The arbitration proceeding shall take place in Switzerland, unless the parties agree to a different locale.
Such arbitration shall be conducted before a panel of three persons, one chosen by each party and the third selected by the two party-selected arbitrators. The arbitration panel shall have no authority to award non-monetary or equitable relief, and any monetary award shall not include punitive damages. The confidentiality provisions applicable to facilitated negotiation shall also apply to arbitration. The award issued by the arbitration panel may be confirmed in a judgment by any federal or state court of competent jurisdiction.
Our failure to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of the Terms and Conditions is found by an arbitration panel or a court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitration panel or court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms and Conditions remain in full force and effect. The headings in these Terms and Conditions are for reference only and do not affect the substance of the text of these Terms and Conditions.