TERMS AND CONDITIONS OF USE
Last Modified: July 24, 2019
Big Smoke Media Inc. is a corporation formed pursuant to the Canada Business Corporations Act (R.S.C., 1985, c. C-44). In consideration for permitting your access to our website, applications and services, and other good and valuable consideration, you agree as follows:
These terms and conditions of use (the "Terms") form a legally binding agreement which govern your access to and use of Big Smoke Media Inc.'s, ("we", "us" or "our") website ("Website"), our iOS and Android applications and online web platform (collectively the "Brain Pick App") hosted at https://www.brainpick.com, with the applications downloadable only on the Google Play and Apple App Store.
IN THESE TERMS, THERE ARE PROVISIONS WHICH LIMIT OUR LIABILITY AND IMPOSE OBLIGATIONS ON YOU. YOU MUST REVIEW THESE TERMS, ALONG WITH ANY POLICIES INCORPORATED BY REFERENCE, BEFORE USING THE WEBSITE AND BRAIN PICK APP.
By using our Website and the Brain Pick App, you, the user ("you" or "your"), represent and warrant that (i) you are at least 18 years old; and (ii) you have read and understand these Terms and agree to be bound by them. If you are not at least 18 years old, or do not agree to these Terms, you are not permitted to establish an account on, or use, the Brain Pick App.
If you are using the Website or Brain Pick App on behalf of, or in the employ of, an organization (corporation, trust, partnership, etc.), you are agreeing to these Terms for that organization and representing and warranting that you have the authority to bind that organization to these Terms. In such a case, "you" and "your" will also refer to that organization and yourself individually. For greater clarity, both you as an individual and your organization are legally bound by these Terms which form an agreement between you and Big Smoke Media Inc.
AS OUR WEBSITE AND BRAIN PICK APP CONTINUE TO CHANGE, WE MAY, AT ANY TIME, REVISE THESE TERMS AND OUR POLICIES BY UPDATING THIS PAGE OR THE PAGE HOSTING THE RELEVANT POLICY. THE DATE OF THE LAST VERSION OF THESE TERMS IS POSTED ABOVE. AS YOU ARE BOUND BY THESE TERMS EACH TIME YOU VISIT OUR WEBSITE OR USE OUR BRAIN PICK APP, YOU ARE RESPONSIBLE FOR PERIODICALLY REVIEWING THE AMENDMENTS TO THESE TERMS AND YOU ARE DEEMED TO HAVE ACCEPTED AND AGREED TO SUCH AMENDMENTS BY ACCESSING AND USING THE WEBSITE OR BRAIN PICK APP AFTER SUCH AMENDMENTS HAVE BEEN POSTED. IF YOU DO NOT AGREE WITH THE AMENDMENTS, YOU MUST IMMEDIATELY STOP ACCESSING THE BRAIN PICK APP AND TERMINATE YOUR ACCOUNT. WE MAY ALSO UNDERTAKE TO SEND YOU NOTICE OF ANY CHANGES TO THE TERMS OR POLICIES.
The Brain Pick App is not, nor do we represent that it is, compliant with the Health Insurance Portability and Accountability Act of 1996 in the United States, or any other similar legislation in other jurisdictions concerning the collection of personal health related information. Accordingly, you agree not to use the Brain Pick App to collect or store any personal health information.
About the Brain Pick App
The Brain Pick App uses paid video calls to connect people looking for advice to people offering it. Video calls are live and one-on-one, so you can have a real conversation, with a real person, in real time. The Brain Pick App may also allow users to share text, photos, videos and other communications.
Establishing an Account
To use the Brain Pick App, you must register an account. To create an account, you will be required to sign-in to and connect your LinkedIn account. You will be redirected to sign-in to your LinkedIn account directly with LinkedIn. We do not collect or store your LinkedIn password. By signing into our service via LinkedIn, they will provide us with access to your basic profile information, see https://developer.linkedin.com/docs/fields/basic-profile.
We use your LinkedIn profile information to verify your identity, including your name. You can update this information within the Brain Pick App at any time. Upon creating your account, your profile information will be visible to other Brain Pick users.
Upon establishing an account, we grant you a worldwide, non-transferable, non-exclusive license to access the Brain Pick App in accordance with these Terms, but reserve the right to revoke the license, your account and your access to our Website and Brain Pick App at any time. You agree not to rent, lease, lend, sell, redistribute or sublicense your account or access to our Brain Pick App.
Account Not Transferable, Updating Your Account & Security
If you establish an account with us, access to your account is not transferrable and is only intended for the individual or entity that established the account. You agree you are responsible for any activity on your account, whether or not you authorized that activity. You further agree to immediately notify us of any unauthorized use of your account.
Users Seeking Advice on the Brain Pick App
If you are seeking advice from another user on the Brain Pick App, you agree and acknowledge that we do not perform any background checks or take measures to confirm either (i) the accuracy of the profile information or representations made by users on the Brain Pick App; or (ii) the accuracy, correctness or credibility of any advice given by a user on the Brain Pick App. You are encouraged to perform your own lawful due diligence and confirm the accuracy, correctness and credibility of any advice you receive via the Brain Pick App.
Representations About Yourself
If you are offering advice on the Brain Pick App, you represent and warrant that all statements you make about yourself, your expertise, your background, education and work experience made on your account, profile, LinkedIn profile and any third party websites you refer to during your use of the Brain Pick App are true and accurate in all respects and not misleading.
Responsibility for Your Own Advice
You agree that:
You shall be fully responsible for your own actions and advice given on the Brain Pick App or which you make in connection with someone you meet via the Brain Pick App;
In the event you cause or contribute to any personal injury, loss or damage to any other user, any third party or property, you are responsible for such injury, losses and damage;
You are not permitted to allow anyone else to use your account to connect with other users or provide advice to other users. However, in the event someone other than yourself uses your account to provide advice to another user, you accept full responsibility and liability for any such advice;
To the extent you offer services or advice in connection with a regulated profession, such as legal advice, medical advice, health advice and others, you represent and warrant that you are lawfully qualified to provide such advice. We make no representations or warranties that the Brain Pick App can be lawfully used in connection with any laws, rules or regulations which govern your profession or industry. It is your responsibility to ensure you are lawfully permitted to use the Brain Pick App in connection with providing your advice and services and that you are not a party to any agreement which would restrict your right to use the Brain Pick App; and
We do not conduct background checks or screen users based on any qualifications, competency or level of experience.
Acceptable Use of Your Account
You agree that you:
Will not screen capture images from your video conversations with another user;
Will not record any video or audio of a conversation you have with another user;
Will not upload, copy, distribute, share, perform, refer to or otherwise use or generate content that is unlawful, obscene, defamatory, libelous, harmful, hateful, harassing, bullying, sexual in nature, threatening, racially or ethnically offensive or abusive, that would violate another person's rights (including their intellectual property rights), constitute or encourage a criminal offense, give rise to civil liability, or violate any local, state, provincial, national or international law or regulation, or that is otherwise inappropriate;
Will not disclose personally identifiable information belonging to others unless authorized by them to do so;
Will not disclose your password or transfer your account to any third party, or allow any third party to access your account;
Will not impersonate any person or entity in using the Brain Pick App;
Will not use our Website or the Brain Pick App in a way that has any unlawful or fraudulent purpose or effect; and
Will not circumvent, disable, violate or otherwise interfere with any security related features of the Website or the Brain Pick App.
In addition to our above acceptable use policy, you agree not to use our Website in any manner which may infringe copyright or other intellectual property rights of any third party.
We may, but have no obligation to, remove content and accounts that we determine in our sole discretion to be unlawful, damaging, or which violate any third-party's intellectual property rights, these Terms or any policy incorporated by reference herein.
You can charge another Brain Pick App user for hosting a video call. You are solely responsible for posting your billing rate within the Brain Pick App. If you fail to post your billing rate before a video call is requested by another user, you cannot retroactively amend the billing rate. You are responsible for ensuring your billing rate is accurate within your account.
If you are seeking advice, you agree to pay all fees associated with the billing rate posted by the user you connect with on the Brain Pick App.
We charge a fee calculated as a percentage or fixed amount each time you connect with another user to either give or receive advice on the Brain Pick App. While our fees may be updated from time to time, our current fees are available at https://www.brainpick.com/givingadvice, and are incorporated by reference.
Additional terms, including terms related to sales tax, refunds, minimum call durations, call cancellations and payment may be specified on the Website and/or the Brain Pick App. Those terms, as amended from time to time, are incorporated by reference and form part of this agreement. If any information or terms posted to the Website or Brain Pick App concerning sales tax, refunds, minimum call durations, call cancellations and payment are posted in error, we reserve the right to amend those terms. Our fees only apply when you connect with another user on the Brain Pick App.
You agree that while we collect payment from users via Stripe, we may deduct our fees from any balance owing to you. In the event of a dispute between two or more users, you agree that we, or Stripe, may refuse to pay out funds received by Stripe pending the resolution of such dispute.
We do not offer refunds unless we have charged you in error. If you believe we charged you in error, you must contact us within ninety (90) days of such charge. No refunds will be given for any charges more than ninety (90) days old.
You agree to pay any and all sales taxes, whether Canadian or foreign, applicable to this agreement or arising in any way from your account and access to and use of the Website and Brain Pick App. You agree and acknowledge that if you are providing services and advice via the Brain Pick App, you may be required to collect and remit sales, income and other taxes in connection with the provisions of your services. You agree that we are not responsible and shall not be liable in connection with your failure to collect and remit any and all such taxes.
ACCEPTANCE OF RISK AND DISCLAIMERS
EVERYTHING ON OUR WEBSITE AND PROVIDED AS PART OF OUR BRAIN PICK APP IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY.
YOU ACCEPT ALL RISKS ASSOCIATED WITH USING THE BRAIN PICK APP, INCLUDING THOSE ARISING FROM INTERACTING WITH OTHER USERS.
YOU AGREE THAT WE SHALL NOT BE RESPONSIBLE FOR THE ACTS OR OMMISSIONS, INCLUDING THE NEGLIGENT ACTS OR OMISSIONS, OF OTHER USERS ON THE BRAIN PICK APP, OUR INDEPENDENT CONTRACTORS, PAYMENT PROCESSORS OR THIRD-PARTY SERVICE PROVIDERS.
YOU AGREE AND ACKNOWLEDGE THAT THE TECHNICAL PROCESSING AND TRANSMISSION OF THE WEBSITE AND BRAIN PICK APP, INCLUDING YOUR VIDEO FEEDS, MAY BE TRANSFERRED UNENCRYPTED, HACKED OR STOLEN BY THIRD PARTIES AND INVOLVE TRANSMISSIONS OVER VARIOUS NETWORKS AND DEVICES, INCLUDING NETWORKS AND DEVICES NOT OWNED OR CONTROLLED BY US. YOU ACCEPT ALL RISKS ASSOCIATED WITH TRANSMITTING YOUR VIDEO FEED AND CORRESPONDENCE OVER SUCH NETWORKS AND DEVICES.
YOU AGREE AND ACKNOWLEDGE THAT WE DO NOT GUARANTEE ANY CONFIDENTIALITY WITH RESPECT TO ANY OF YOUR VIDEO CALLS, OR OTHER INFORMATION YOU COMMUNICATED ON THE WEBSITE OR BRAIN PICK APP.
YOU AGREE THAT, WHILE WE STRIVE TO HAVE ERROR FREE AND UNINTERRUPTED SERVICE, WE DO NOT GUARANTEE THE ABSENCE OF INTERRUPTIONS NOR SHALL YOU HOLD US LIABLE FOR ANY DAMAGE SUCH INTERRUPTIONS MAY CAUSE.
LIMITATION OF OUR LIABILITY
ASIDE FROM CLAIMS FOR DIRECT AMOUNTS OWING TO YOU AS A RESULT OF ADVICE YOU GIVE TO ANOTHER USER ON THE BRAIN PICK APP, YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE, OUR OFFICERS, DIRECTORS, SHAREHOLDERS OR EMPLOYEES, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWSOEVER CAUSED, INCLUDING BY NEGLIENCE OR OTHERWISE, REGARDLESS OF LEGAL THEORY AND WHETHER OR NOT WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER THOSE DAMAGES WERE FORESEEABLE OR NOT.
IF YOU ARE DISSATISFIED WITH THE WEBSITE OR BRAIN PICK APP, OR DO NOT AGREE WITH ANY PART OF THESE TERMS, OR HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST US, OUR OFFICERS, DIRECTORS, SHAREHOLDERS OR EMPLOYEES, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE WEBSITE AND BRAIN PICK APP.
IN ADDITION TO YOUR AGREEMENT TO NOT HOLD THE ABOVE ENTITIES AND PERSONS LIABLE FOR ANY DAMAGES, IN THE EVENT A COURT OR ARBITRATOR OF COMPETENT JURISDICTION DECLINES TO UPHOLD SAID CLAUSE, YOU AGREE THAT IN NO CIRCUMSTANCES SHALL THE AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS RELATING TO OR IN ANY WAY ARISING FROM THE USE OF OUR WEBSITE OR BRAIN PICK APP, OR IN ANY WAY RELATED TO THESE TERMS, BE MORE THAN THE LESSER OF (I) $50.00 OR (II) THE AMOUNTS PAID TO YOU BY US OVER THE PRECEEDING TWO (2) MONTHS FROM THE DATE YOU FIRST RAISE YOUR CLAIM WITH US.
YOU AGREE AND ACKNOWLEDGE THAT ACCESS TO OUR WEBSITE AND BRAIN PICK APP, AND IF YOU ARE A PAYING USER, THE FEES PAID BY YOU, REFLECTS THE ALLOCATION OF RISK SET FORTH IN THESE TERMS AND THAT WE WOULD NOT ENTER INTO THIS AGREEMENT OR GRANT ACCESS TO THE WEBSITE OR BRAIN PICK APP WITHOUT THESE RESTRICTIONS AND LIMITATIONS ON OUR LIABILITY.
INDEMNIFICATION AND HOLD HARMLESS
Our Website and Brain Pick App contain open source and public domain content, licensed content as well as proprietary content owned by us and by third parties. You are not permitted to copy, use or distribute any content (including but not limited to text, software code, images, trademarks, videos and audio) on the Website or Brain Pick App without the express consent of the owner.
All rights, title and interest in and to the Website, Brain Pick App and their contents or components are and will remain the exclusive property of Big Smoke Media Inc. and our licensors.
The Website, Brain Pick App and their contents are protected by copyright, trademark and other laws of Canada, the United States and foreign countries. You agree not to reproduce, modify or prepare derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Website, Brain Pick App or their contents, including recordings of your interactions with other users, without our express written consent. You also agree not to copy or modify the software code used on, or which underlies, the Website or Brain Pick App.
You are not permitted to use any trademark or trade name of Big Smoke Media Inc., including our logo, without our express permission.
Our Website and Brain Pick App permits you and other users the ability to upload, stream and post content ("User Content") to the Brain Pick App. You own your User Content. While it may be displayed publicly on the Brain Pick App, you can delete your User Content at any time. We do not pre-screen User Content uploaded, streamed or posted to the Website or service by you or other users.
In connection with your User Content, you affirm, represent and warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use all patent, trademark, trade secret, copyright or other proprietary rights in and to your User Content in the manner contemplated by the Brain Pick App.
You hereby grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any of your User Content that you post, stream or upload to the Brain Pick App in order to facilitate the ordinary use of the Brain Pick App.
We do not consider proposals or ideas, including without limitation ideas for new products, technologies, promotions, product names, product feedback and product improvements you provide us (“Feedback”) to be confidential information. If you send any Feedback to us, you acknowledge and agree that we shall not be under any obligation of confidentiality with respect to the Feedback and nothing in these Terms limits or restricts Brain Pick’s right to independently use, develop, evaluate, or market products, whether incorporating the Feedback or otherwise.
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible on our Website or Brain Pick App, please notify our copyright agent at firstname.lastname@example.org. While we take no responsibility for any user who breaches your intellectual property or other rights, we may, in our sole discretion and without liability, undertake to attempt to contact the infringer on your behalf and/or cancel the infringer's account.
Whether or not we are affiliated with websites or third-party vendors that may be linked to our Website, you agree that we are not responsible for their content. Internet links found on our Website, whether posted by us or a third party, are not an endorsement and we do not represent or warrant the accuracy or truth of the contents, or endorse the products, services or information found on said websites. You access those links and corresponding websites at your own risk.
Law of the Contract (Governing Law) and Jurisdiction
These Terms, all documents incorporated by reference and your relationship with us shall be governed by, construed and enforced in accordance with the laws of the Province of Ontario, Canada, (and any Canadian federal laws applicable therein) as it is applied to agreements entered into and to be performed entirely within such province.
You hereby agree to irrevocably and unconditionally submit to the exclusive jurisdiction of the courts and tribunals of Ontario, Canada (including the Federal courts and tribunals as applicable therein) to settle any disputes arising out of or in anyway related to these Terms, all documents incorporated by reference and your relationship with us.
If any provision of these Terms are found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
No Construction Against Drafter
If an ambiguity or question of intent arises with respect to any provision of these Terms, the Terms shall be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favouring or disfavouring either party by virtue of authorship of any of the provisions of these Terms.
Waiver of Class Proceedings and Trial By Jury
To the extent permitted by law, you hereby waive your right to participate in any class action lawsuits against us, our contractors, employees, shareholders, successors, assigns and directors. To the extent permitted by law, you further waive any right to a trial by jury, should such a right exist, in relation to any legal dispute connected to or in any way arising out of these Terms.
Incorporation by Reference
Though we would much rather you stay, you can stop using our Website and Brain Pick App at any time. Please contact us to learn more about cancelling your account.
We reserve the right to suspend your account or access to our Website or Brain Pick App at any time, with or without cause, and with or without notice.
Your cancellation, suspension or termination of access to our Website or Brain Pick App shall not terminate this agreement. In particular, and without limiting the generality of the foregoing, any provision concerning the limitation of our liability, your indemnification obligations, settling disputes (including the jurisdiction and choice of law) shall remain binding even upon termination.
Assignment of this Agreement
These Terms shall ensure to the benefit of and is binding upon the parties and their respective successors and permitted assigns. You agree that we may assign this agreement to any successor or assignee, whether pursuant to the purchase of our Website and Brain Pick App, the transfer of control of Big Smoke Media Inc., or otherwise.
Right to Seek Injunction
Violation of these Terms may cause us irreparable harm and, therefore, you agree that we will be entitled to seek extraordinary relief including, but not limited to, temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that we may have for a breach of these Terms.
Our failure to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.
We may automatically check your version of the Brain Pick App. While we have no obligation to provide software updates, we may, (i) require you to download and install software updates; or (ii) automatically download and install updates to your device.
In the course of using your account with us or using our Website and Brain Pick App, you may be required or by your actions, may be deemed, to consent to the terms of agreements provided by certain third-party service providers, including but not limited to, payment processors, social media login account providers such as LinkedIn, credit card companies and banks. You agree that nothing in those agreements shall, in any way, alter these Terms or your obligations hereunder.
Any new features that augment or enhance the current Website or Brain Pick App, including the release of new versions, new products, services, tools or resources, shall be subject to these Terms. Continued use of the Website and Brain Pick App after any such changes shall constitute your consent to such changes.