Date of Last Revision: February 27, 2012
This ABT Terms of Service Agreement (“Agreement”) is a legal document. It outlines your rights and obligations as a User of the ABT online services, which is developed and operated by Advanced Brain Technologies, LLC (“ABT”). By accessing or using the Service, you acknowledge that you have read, understood, and agree to be bound by the provisions of this Agreement. This Agreement applies to all Users and enrolled Subscribers, irrespective of whether they have purchased products or services or enrolled in any way to use products from ABT. Other agreements, which supplement this Agreement, may apply to your purchase or use of certain features or products offered by this service.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND OBLIGATIONS, INCLUDING CERTAIN LIMITATIONS AND EXCLUSIONS AND A PROCEDURE FOR RESOLVING DISPUTES.
As used in this Agreement:
A. “User” means an individual or business that accesses or uses the Site.
B. “Member” means a User who has been Registered to access or use certain services, features, and content available to Members on the Site.
C. “Registration” means the process of registering to access or use the Service. You are “Registered” when you create a Member account by providing a user name, password, and certain personal contact information as prompted on the Site.
D. “Registration Information” means the information, including user name and password, required of a Member to complete the Registration process.
E. “Service” means the services, features, and content available to Members on the Site.
F. “Paid Service” means any aspect of the Service that requires payment of a fee.
G. “Free Service” means any aspect of the Service that is offered free of charge.
H. “Subscriber” means a Member who Enrolls for, accesses, or uses a Free or Paid Service.
I. “Enrollment” means the process of signing up for any Account Aggregation Service. You are “Enrolled,” and “Enrollment” has occurred, when you create an account for an Account Aggregation Service (in addition to your Member account) and provide the necessary Enrollment Information.
J. “Enrollment Information” means the information, including financial institution account information, required of a Member to complete the Enrollment process. In the case of any Paid Service, Enrollment Information includes billing information such as checking account or credit card information for the purpose of paying fees.
K. “Forum” is a component of the Site that allows Members, and other Users to exchange ideas, experiences, or advice regarding the Service generally.
L. “Site Content” means all text, graphics, video, audio, links, communications, and other information contained on the Site, other than User Content.
M. “User Content” means all text, graphics, video, audio, links, communications, and other information submitted, posted, or shared by Users on the Site.
3. ELIGIBILITY TO USE THE SITE
To become a Member you must be at least 18 years old, or have permission from your legal guardian, or gain access through an institution which has previously acquired permission from your legal guardian. By using the Service or the Site, you represent that you are not a person barred from receiving services under the laws of the United States or any other applicable jurisdiction, and you agree to comply with the terms of this Agreement or your legal guardian agrees to comply with the terms of this agreement.
4. ACCOUNT REQUIREMENTS
If you Register as a Member or Enroll in any aspect of the Service, you agree to provide accurate, current, and complete Registration Information (and, as applicable, Enrollment Information) as prompted by the Service’s Registration and Enrollment processes. You agree to promptly update the Registration Information, Enrollment Information, and any other information you provide to ABT to keep it accurate, current, and complete. YOU ALSO AGREE TO KEEP YOUR CURRENT E-MAIL ADDRESS AND OTHER CURRENT REGISTRATION INFORMATION OR ENROLLMENT INFORMATION ON FILE WITH ABT DURING THE TERM OF THIS AGREEMENT AND FOR ONE YEAR THEREAFTER. If you provide any information, or ABT reasonably suspects you have provided any information, that is untrue, inaccurate, not current, or incomplete, ABT may terminate your account and refuse all access to or use of the Service and the Site. You agree that your right to use the Service is personal to you, and you may not resell, assign, or make any commercial use of the Service.
5. PRIVACY, PASSWORD, AND SECURITY
Upon Enrollment, you will select a user name and password. You are solely responsible for use of the Service. You must keep your password confidential so that no one else may access the Service through your account. You must notify ABT immediately upon discovering any unauthorized use of your Service or if you believe your password has been compromised.
6. SERVICE ACCESS AND SPEED
Service speed may vary depending on your online or Internet service provider, location, line quality, inside wiring, Internet traffic, and other factors beyond ABT’s control. ABT does not guaranty upload or download speeds or other performance beyond its control.
You acknowledge and agree that you must provide for your own access to the Internet and pay any service fees associated with such access, and that you must provide all equipment necessary for you to make such connection to the Internet, including without limitation, modems, hardware, software, internet service, long distance or local telephone service.
You may not have full access to the Service if the Internet connection for your Internet service provider is down or inaccessible, or if you provide incorrect information. If your Internet service provider terminates your service, your access to the Service may be limited or denied. ABT is NOT responsible for any such limitation or denial, or for any long-distance, data charges or other charges or fees you incur while you use the Service or the Site.
7. USE OF THE SITE
You agree to use the Service and the Site in accordance with the terms of this Agreement and applicable law. You agree that you will not upload, submit, post, transmit, or share through the Service any material that is libelous or otherwise defamatory; is fraudulent; obscene, vulgar, inflammatory, or harassing; is racially, ethnically, or religiously charged; is disparaging of or reflects negatively on ABT or any of its products or services or any Member, or other User; or infringes the rights of any third party, including intellectual property rights. You may not use the Service to conduct any business or activity, or solicit the performance of any activity, that is prohibited by law or that encourages criminal activity. You may not upload, post, transmit, share, store or otherwise make available on the Site content which, in ABT’s sole judgment, is objectionable; which restricts or inhibits any other person from using or enjoying the Site; or which may expose ABT or its Users to harm or liability. Finally, you may not use the Service or the Site to harvest contact information of other Users or to upload or transmit unauthorized or unsolicited advertising or promotions of any kind. ABT reserves the right to remove from the Site, without notice, any content that does not conform to the standards set forth in this Agreement; and to cancel your Member account and terminate your right to use the Site in the event you have submitted any material or engaged in any activity that violates this Agreement.
8. SITE CONTENT AND USER CONTENT
You are on notice that all materials displayed or performed on the Site (including, but not limited to text, graphics, games, applications, news articles, photographs, images, illustrations, audio clips and video clips, collectively, the “Content”) may constitute our intellectual property and accordingly would be protected by copyright and/or trademark, pursuant to U.S. laws, international conventions, and other laws. The Site and the Content may only be used in accordance with the Terms of Service. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (unless otherwise provided in the Terms of Service), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part. You shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Site. You may access the Content, and other items displayed on the Site for personal use only. You shall not store any of the Content in any form from the Site unless otherwise explicitly permitted on the Site. Downloading, copying or storing of any Content is expressly prohibited without the prior written permission from the Company, or from such other copyright holder as may be identified in such Content’s copyright notice. Your use or access of the Site does not grant you any rights in or to the intellectual property of the Company or any third-party. All Site Content is proprietary to ABT, and may not be copied, downloaded, or used, except in conformity with this Agreement and the purposes of the Site. User Content is not confidential, and ABT reserves the right to publish it in any medium without further authorization from or compensation to the User who submitted the User Content. ABT also reserves the right to remove User Content from the Site at any time in its sole discretion. ABT is not responsible for any data charges by your Internet service provider or telephone company.
9. THIRD PARTY SITES
The Site may contain links to websites provided or operated by parties other than ABT. When you visit any such websites, you do so at your own risk. ABT undertakes no obligation to monitor such websites and is not responsible for any damage, loss of privacy, or offensive material you may encounter as you navigate away from the Site. You should consult the user agreements and privacy and security policies of any such websites you visit.
10. MONITORING THE SERVICE
You acknowledge that the Forums on this Site are offered for interaction among Users only, and you use them at your own risk. You assume the risk of encountering any harassing, disparaging, offensive, or obscene material in the Forums, and will promptly report any such material to ABT. Communications posted in any Forum are not intended to represent the views of ABT. Any advice you may receive from the Forum represent the User’s opinion and is not necessarily the opinion of ABT. No User is authorized to represent ABT in any dealings with other Members, or to make any warranties regarding any products or services offered by ABT. Any communications between Users must conform to the standards set forth in this Agreement. To the fullest extent allowed by applicable law, you agree to waive any claim against any User arising out of any communication or advice offered by another User. You also agree to waive any claim against ABT arising out of any communication, advice, or conduct of any User, on the Site or otherwise. ABT may decline to allow you to participate in any Forum, and may terminate your participation at any time in its sole discretion.
12. CHARGES AND BILLING
Any Paid Service must be pre-paid. Payment for Paid Service is due on the day of Enrollment or the first day after the expiration of any free trial period, whichever occurs later; and thereafter on the first day after the end of each billing cycle. Billing cycles vary depending on the type of payment plan a Subscriber selects. Payment for Paid Service grants access to Subscribers to utilize the Service 24/7. EXCEPT AS PROVIDED IN THIS AGREEMENT OR BY EXPRESS NOTIFICATION FROM ABT TO THE CONTRARY, PAYMENT FOR PAID SERVICE-WHETHER USED OR UNUSED-IS NON-REFUNDABLE.
Most Subscribers pay by credit card. If you don’t have a credit card, you may authorize ABT to make electronic fund transfers from your checking account. By selecting this billing option and providing ABT with your checking account information, you authorize ABT to debit your checking account for Paid Service fees and other applicable charges. If your financial institution declines your payment, you agree to pay ABT a $25.00 NSF or closed account fee for every such occurrence – in addition to any fee your financial institution may charge.
WE WILL AUTOMATICALLY CHARGE YOUR DESIGNATED CREDIT CARD OR DEBIT YOUR CHECKING ACCOUNT EVERY BILLING CYCLE UNLESS YOU CANCEL THE SERVICE USING THE PROCEDURES OUTLINED IN THIS AGREEMENT. BY CONTINUING TO SUBSCRIBE TO PAID SERVICE, YOU RE-AFFIRM THAT ABT IS AUTHORIZED TO COLLECT APPLICABLE FEES BY CHARGING YOUR CREDIT CARD OR DEBITING YOUR CHECKING ACCOUNT, DEPENDING ON THE PAYMENT METHOD YOU HAVE SELECTED. NONUSE OF OR NON-PAYMENT FOR THE SERVICE DOES NOT CONSTITUTE CANCELLATION OF THE SERVICE, NOR DOES IT REMOVE YOUR ONGOING OBLIGATION TO PAY APPLICABLE SERVICE FEES.
ABT is not responsible for any charges or expenses (such as for overdrawn accounts or exceeding credit or debit card limits) resulting from charges billed by ABT. YOU AGREE TO MAINTAIN VALID AND CURRENT CREDIT CARD, DEBIT CARD, OR CHECKING ACCOUNT INFORMATION ON FILE WITH ABT DURING THE TERM OF THIS AGREEMENT AND FOR ONE YEAR THEREAFTER.
13. CHANGES IN FEES OR BILLING METHODS
ABT reserves the right to change its fees or billing methods at any time. If you don’t like the changes in fees or billing methods, you may cancel the Service at any time subject to the cancellation provisions outlined in this Agreement. ABT also has the right to collect applicable taxes and impose premium surcharges for some areas of Service.
14. AUTOMATIC RENEWAL
NO MATTER WHICH PAYMENT PLAN YOU SELECT, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF THE PLAN’S TERM AND YOUR CREDIT CARD OR CHECKING ACCOUNT WILL BE CHARGED, UNLESS YOU CANCEL YOUR SUBSCRIPTION BEFORE THE END OF THE PLAN’S TERM FOLLOWING THE PROCEDURES OUTLINED IN THIS AGREEMENT. .
15. DELINQUENT ACCOUNTS AND BILLING DISPUTES
We expect you to pay your account balance on time. Delinquent accounts may be suspended or canceled at ABT’s sole discretion; however, charges will continue to accrue until the Service is properly canceled. ABT may impose an additional charge to reinstate suspended or canceled Service. ABT will assess an additional 1.5% per month late charge (or the highest amount allowed by law, whichever is lower, with a minimum charge of $1.00) if your payment is 30 days past due. That amount is due immediately upon assessment. You are liable for any costs, including attorney and collection fees, ABT may incur in collecting any balance from you. IF YOUR ACCOUNT IS CANCELLED, YOU WILL BE BILLED FOR AND WILL PAY ANY OUTSTANDING BALANCE, INCLUDING ANY ONGOING SUBSCRIPTION FEES THROUGH THE END OF YOUR PLAN’S TERM. YOU WAIVE YOUR RIGHT TO DISPUTE ANY BILLING PROBLEM OR DISCREPANCY UNLESS YOU NOTIFY US OF THE PROBLEM IN WRITING AT: ABT, 5748 SOUTH ADAMS PARKWAY, OGDEN, UTAH 84405, WITHIN 60 DAYS AFTER (A) AN INDICATION OF THE PROBLEM FIRST APPEARS ON YOUR BANK OR CREDIT CARD STATEMENT, OR (B) YOU RECEIVE THE DISPUTED INVOICE OR STATEMENT FROM ABT, WHICHEVER OCCURS FIRST.
16. TERMINATION AND CANCELLATION
YOU MAY CANCEL YOUR SERVICE ACCOUNT ACCORDING TO THE PROCESS PROVIDED WITHIN THE PRODUCT. CANCELLATION WILL BE EFFECTIVE WITHIN TEN (10) DAYS AFTER THE CANCELLATION REQUEST IS PROPERLY DELIVERED. ABT will process your cancellation request and send you e-mail confirmation of the cancellation.
17. LIMITATION OF WARRANTIES AND LIABILITY; DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ABT MAKES NO EXPRESS WARRANTIES, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING ANY MERCHANDISE, INFORMATION, OR SERVICE PROVIDED THROUGH ABT OR THE INTERNET GENERALLY. NO STATEMENTS MADE, OR ADVICE OR INFORMATION GIVEN, BY ABT, IT’S REPRESENTATIVES, OR ANY USER WILL CREATE A WARRANTY.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ABT DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ABT, ITS EMPLOYEES, AND AGENTS ARE NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICE OR THE INTERNET, INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. ABT’S CUMULATIVE LIABILITY TO YOU FOR ALL CLAIMS RELATING TO USE OF THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT YOU HAVE PAID FOR THE SERVICE.
ABT WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS OR PROCEEDINGS RESULTING FROM: OTHER USERS ACCESSING YOUR COMPUTER; SECURITY BREACHES; EAVESDROPPING; DENIAL OF SERVICE ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; YOUR RELIANCE ON OR USE OF THE SERVICE, OR THE MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS, OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; THE USE OF THE SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY OR OTHER INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS OF ABT OR ANY THIRD PARTY; THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL SERVICES, PRODUCTS, AND OTHER INFORMATION; OR THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE SERVICE OR THE INTERNET.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE FOREGOING LIMITATIONS APPLY TO THE ACTS AND OMISSIONS (INCLUDING NEGLIGENCE AND GROSS NEGLIGENCE) OF ABT AND ITS OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES THAT, BUT FOR THIS PROVISION, WOULD GIVE RISE TO A CAUSE OF ACTION AGAINST ABT IN CONTRACT, IN TORT, OR UNDER ANY OTHER LEGAL DOCTRINE. YOUR EXCLUSIVE REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET OUT IN THIS AGREEMENT. ABT WOULD NOT BE ABLE TO PROVIDE THE SERVICE TO YOU WITHOUT SUCH LIMITATIONS. ANY WARRANTY UNDER THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY BY JURISDICTION.
18. JURISDICTION; LIMITATION OF ACTIONS
THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS, EXCEPT AS UTAH LAW MAY BE PREEMPTED BY THE LAWS OF THE UNITED STATES. YOU CONSENT TO THE JURISDICTION OF THE COURTS OF THE STATE OF UTAH, OR THE COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF UTAH, WITH VENUE IN SALT LAKE COUNTY, AS THE SOLE FORUM TO RESOLVE ANY DISPUTE ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE SERVICE. YOU AGREE THAT, REGARDLESS OF ANY STATUTE OF LIMITATIONS OR OTHER LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS SERVICE AGREEMENT OR THE USE OF THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES, OR BE FOREVER BARRED. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU WAIVE YOUR RIGHT TO A JURY TRIAL IN ANY LITIGATION ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE SERVICE.
You agree to defend, indemnify, and hold harmless ABT and its subsidiaries, employees, contractors, officers, directors, telecommunications providers, and content providers from all liabilities, claims, and expenses, including attorney fees, arising out of any breach by you of this Agreement or your use of the Service or the Internet. ABT reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to your indemnification. In that event, you will have no further obligation to provide a defense for ABT in that matter. In no event will you compromise, settle, or resolve any claim against ABT without its prior written consent.
20. TRADEMARK AND COPYRIGHT LEGAL NOTICES
Advanced Brain Technologies, The Listening Program, TLP Online, Sound Health, Brain Builder, Spatial Surround, Healing at the Speed of Sound, ABC Modular Design, ABT Bone Conduction Audio System, iListen and all the logos of the foregoing, are trademarks or registered trademarks of Advanced Brain Technologies, LLC. By placing them on this website, ABT does not grant any license or other authorization to use any of its trademarks, registered trademarks, copyrightable material, or other intellectual property.
The provisions of this Agreement are severable. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of the remaining provisions and each provision will be enforced to the fullest extent allowed by applicable law.
22. NO THIRD-PARTY BENEFICIARIES
This Agreement is made for the exclusive benefit of, and is binding upon, ABT and the Member, and their respective heirs, successors, and assigns. No other person or entity will have any interest under this Agreement or be classified as a third-party beneficiary.
23. ENTIRE AGREEMENT