Last Updated February 23, 2020
Please read these Terms of Use (“Terms”) carefully before using any BrainsWay websites, mobile/tablet applications, and other online programs, or the materials, software and content available in or through them (altogether, “Online Services”). By downloading or using any of the Online Services, you affirm that you are able and legally competent to accept and agree to these Terms and our Privacy Policy. If you do not agree to any of these Terms, then please do not access or use any of the Online Services.
These Terms constitute an agreement between you and BrainsWay, Ltd. and its affiliates, d/b/a BrainsWay (“BrainsWay” or “we” or “us”).
Notice Regarding Dispute Resolution: These Terms contain provisions governing how any claims that may arise between you and BrainsWay will be resolved (see Legal Disputes and Arbitration Section below), including an obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit any claims you might have against us to binding arbitration, unless you opt-out in accordance with the Arbitration Section below.
LINKS TO SPECIFIC TOPICS
Additional Terms
Certain services offered through the Online Services may be subject to additional terms. Those terms will be presented in conjunction with the particular program or offer and will be binding on those who participate in those programs or offers. These Terms will apply equally.
Minors
The Online Services are not intended for use by anyone under age 18. YOU MUST BE AT LEAST AGE 18 TO ACCESS AND USE THE ONLINE SERVICES. By accessing, using and/or submitting information to or through the Online Services, you represent that you are at least age 18.
Users and Accounts
To use certain Online Services, you may need to create an account. If you create an account, you agree you will: (a) create only one account; (b) provide honest, accurate, current and complete information regarding yourself; (c) keep your information updated and accurate; and (d) notify BrainsWay if you discover or suspect that your account has been hacked or its security breached.
By creating an account and/or using the Online Services, in addition to these Terms and the Privacy Policy, you agree to comply with all applicable federal, state and local laws, rules and regulations. Your failure to comply with these Terms including those contained in this section shall be deemed a waiver of any and all claims against BrainsWay for any losses you may sustain from using the Online Services.
You agree to take responsibility for all activities on or under any account registered to you and you accept all risks for any unauthorized use of your account. You are responsible for providing the equipment and services that you need to access and use the Online Services. We do not guarantee that the Online Services will be accessible on any particular equipment or device or with any particular software or service plan.
We reserve the right, without notice and in our sole discretion at any time, to terminate your right to access and use the Online Services or any component of the Online Services, and to block or prevent future access to and use of the Online Services and to delete your account and any related information. Any obligation or liability incurred prior to termination of your access to the Online Services will survive such termination.
Privacy
Our Privacy Policy describes the data that we gather about or from users of the Online Services and how we process, use and share that data. Be sure to read it to understand these matters.
Content terms
The Online Services include a database (“Database”) to collect, upload, submit, store, track, analyze and export data about you and your use of BrainsWay’s products. The Online Services also may include a forum where you can communicate with other users.
You are solely responsible for all content you may submit or upload via the Online Services (“User Content”). You warrant and represent that your User Content does not contain any material or content that is inaccurate, false or misleading, unlawful, harmful, threatening, abusive, vulgar, harassing, defamatory, obscene, pornographic, indecent, inflammatory, libelous, tortious, hateful, or racially, ethnically or otherwise objectionable, or invasive of another’s rights including but not limited to rights of copyright, celebrity, publicity, privacy and intellectual property, or otherwise in violation of any federal, state or local law, rule or regulation.
Under no circumstances will BrainsWay be liable in any way for any loss of any User Content. The Online Services is not intended as a permanent storage depository for User Content. You are responsible for retaining copies of your User Content. You can download User Content where applicable from your Database by following the on-screen instructions in the Online Services.
You retain ownership of all User Content you submit or upload. You grant us and our designees the non-exclusive right to use such User Content in accordance with these Terms and our Privacy Policy.
User Content in Your Database
User Content in your Database is not displayed publicly in the Online Services. Such User Content can be exported OR shared with your medical professionals or others at your request.
You are responsible for any User Content in your Database, including any data that is imported from electronic files, apps, or devices. We will not confirm the quality or accuracy of User Content in any Database. You agree to monitor your Database and correct any errors you discover.
User Content in Public Areas
We have no obligation, but reserve the right, to monitor, flag, delete, or refuse to reproduce any User Content submitted or posted in public areas of the Online Services that we believe may be in violation of these Terms based on such User Content.
Any information submitted or posted in a public area of the Online Services may be seen by BrainsWay and other users. Keep that in mind when deciding what to submit or post. Do not submit or post any private or intimate information about yourself or another person.
NO MEDICAL ADVICE PROVIDED
All materials and information available via the Online Services, such as text, treatments, statistics, charts, profiles, graphics, photographs, images, messages, forum postings, and any other material provided on the Online Services are for informational purposes only and are not a substitute for professional medical advice or treatment. Seek the advice of your physician or other qualified health provider with any questions you may have regarding your health.
You agree that you are not using the Online Services to seek medical attention or advice. Your medical professionals and others with whom you share your information from the Online Services may be using, at your request, the User Content in your Database. Medical records can include errors, which, if relied or acted upon, could cause serious harm. You are responsible for all of your User Content, including any inaccuracies or errors, and the consequences of your or any other person’s reliance or advice based on your User Content and use of the Online Services (including your Database) to support your health care.
If you think you may have a medical emergency, call your doctor or 911 immediately. BrainsWay does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Online Services. Reliance on any information provided by BrainsWay, by persons appearing on the Online Services at the invitation of BrainsWay, or by other users is solely at your own risk.
Personal Use Only
The Online Services are owned by BrainsWay and licensed to you for your personal, non-commercial use only. Except as expressly provided in these Terms, you may not copy, distribute, publish, transmit, modify, transmit, publicly display or perform, create derivative works of or otherwise exploit any part of the Site. You may not save or archive a significant portion of the material appearing in or on the Site. All rights not expressly granted herein are reserved by BrainsWay.
Responsible Use of the Online Services
You may use the Online Services for lawful purposes and in accordance with these Terms. No other use is permitted. Without limiting the foregoing, you may not use the Online Services:
(a) for any purpose that is unlawful or prohibited by these Terms;
(b) to cause harm or damage to any person or entity;
(c) to interfere with the proper operation of the Online Services; or
(d) to upload, post or transmit any material that violates any law, infringes on the rights of any third party or contains defamatory, libelous, abusive, obscene or otherwise objectionable material (as determined by BrainsWay in its sole discretion) or viruses or other malware which may harm the operation of the Online Services or anyone else’s computer.
(e) to create an account for the purpose of making a competitive assessment of our services or incorporating any information or other content from the Online Services into any service you offer to third parties;
(f) to engage in bad online citizenship, such as spam our users, distribute spyware or viruses, collect personal information without disclosing and abiding by your own posted privacy, or attempt to reverse engineer or hack into our systems;
(g) to access or scrape the Online Services by any automated means unless you are a search engine crawling the Online Services for the sole purpose of creating a publicly accessible search index; bog down the Online Services by uploading or downloading an unreasonably large amount of material at one time; or bypass any technical protections, storage limits or throttling that we institute; or
(h) to reverse engineer, decompile, disassemble, create derivative works of, remove the copyright designation from, copy, sublicense or distribute any content, application or software code associated with the Online Services.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS BrainsWay AND ITS PARENTS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, FRANCHISEES, AGENTS, LICENSORS, BUSINESS ASSOCIATES, AND SUPPLIERS FROM AND AGAINST ANY ACTUAL OR THREATENED CLAIMS, ACTIONS OR DEMANDS, LIABILITIES AND SETTLEMENTS (INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES) RESULTING (OR ALLEGED TO RESULT) FROM YOUR USE OF ANY ONLINE SERVICES IN ANY MANNER THAT VIOLATES OR IS ALLEGED TO VIOLATE APPLICABLE LAW OR THESE TERMS.
Provision or Suspension/Withdrawal of the Online Services
You understand and agree that: (a) the Online Services may change from time to time without notice to you. Any new feature that augments, enhances or modifies the current Online Services is subject to these Terms; (b) we may decline to provide access to the Online Services or stop (permanently or temporarily) providing the Online Services (or any feature, program or content within the Online Services) to you or other users at our sole discretion, without notice or liability to you; and (c) if we disable access to your account, you may be prevented from accessing the Online Services, your account details, or any files or other content which are contained in your account.
Location-Based Services
If you enable location-based services on your computer or mobile device in connection with your use of the Online Services, you expressly consent to BrainsWay collecting the geolocation (which may include specific longitude and latitude and may identify specifically frequented locations) of your device. This information will be used as set forth in our Privacy Policy, including to provide specific advertising content or messages based on your location. Please see our Privacy Policy for further information and for details on how to opt-out of location information collection.
Social Media Access
You may have the option to access or log-in to the Online Services through a third party social media service that you belong to, such as Facebook, Twitter, YouTube, and/or Instagram. If you choose to do so, you grant us permission to access and use the information that you post or store on the applicable social media service, in accordance with the privacy policy of that service and the privacy settings that are applicable to your account. For more information on how we use the information we collect about you from these social media services, please review our Privacy Policy. For more details on how you can manage the information provided to us by these social media services, please review the privacy settings applicable to your account with the applicable social media service.
Mobile Access
If you use a mobile device to access the Online Services, you acknowledge and agree that: (a) you are solely responsible for all message and data charges that apply to use of your mobile device to access the Online Services; and (b) all such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status and details. You further understand that service may not be available in all areas at all times and may be affected by product, software, coverage or service changes made by your mobile service provider or otherwise. Additional terms and conditions may apply to your use of our mobile applications based on the type of mobile device that you use. See iPhone App End User Agreement and Android App End User Agreement. By accessing or using any Online Services via a mobile device, you agree to these Terms and to any applicable terms of a mobile app you may use.
United States ONLINE SERVICES
The Online Services are governed by the laws in the United States and the State of Delaware. You are responsible for compliance with any local laws if you access or use the Online Services from anywhere else.
Indemnity, Disclaimers and Limits on Liability
Indemnity
You agree to indemnify, defend, and hold harmless BrainsWay and its affiliated companies (collectively “BrainsWay”), and their respective affiliates, officers, directors, shareholders, employees, contractors, licensors, licensees, agents, and representatives (the “Covered Entities”) against all liability, claims, costs, damages, settlements, and expenses (including interest, penalties, attorney fees and expert witness fees) (“Liabilities”) incurred by any Covered Entity in any way arising out of or relating to your breach of these Terms or our other policies referenced in these Terms, including but not limited to any use of any of your User Content that infringes the rights of third parties. BrainsWay reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and if BrainsWay assumes defense and control, you agree to cooperate with our defense of an applicable claim. You agree not to settle any matter related to the Online Services, including indemnified claims, without our prior written consent. We will use reasonable efforts to inform you of any indemnified matter.
Disclaimers
To the maximum extent permitted by law, THE COVERED ENTITIES MAKE NO WARRANTY OF ANY KIND ABOUT THE ONLINE SERVICES or any Productions created via the Online Services, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NON-INFRINGEMENT. THE COVERED ENTITIES HAVE NOT MADE ANY REPRESENTATION AS TO THE POTENTIAL BENEFITS YOU MAY REALIZE BY USING THE ONLINE SERVICES or any Productions created via the Online Services. THE ONLINE SERVICES and all Productions are PROVIDED AS IS, WITH ALL FAULTS, AND AS AVAILABLE. THE COVERED ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING THOSE MENTIONED ABOVE.
THE COVERED ENTITIES ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY A THIRD PARTY OR BY YOU OR ANYTHING ACCESSED VIA ANY LINKS TO THIRD PARTY WEBSITES, SERVICES, OR SOFTWARE. THE COVERED ENTITIES UNDERTAKE NO OBLIGATION TO ENFORCE THEIR POLICIES OR RIGHTS AGAINST ANY THIRD PARTY. YOU BEAR ALL RISKS ASSOCIATED WITH USING THIRD PARTY LINKS, WEBSITES, ETC. The Covered Parties are not responsible or liable for the conduct of any user of the Online Services.
Limitations on Liability
THE COVERED ENTITIES SHALL NOT BE LIABLE FOR (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, Statutory Damages or penalties, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION), EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF these types of DAMAGES, OR (B) LOSS OF OR DAMAGE TO REPUTATION arising in connection with, out of, or as a result of (i) these Terms or site or services, and (ii) any acts or omissions of any of the covered entities in connection with these terms or the Online Services or services. The maximum remedy available to you under these terms AND in connection with the Online Services and services is reimbursement of any amounts you have paid to us DURING THE SIX MONTHS IMMEDIATELY PRIOR TO ANY CLAIM.
Legal Disputes
In the event that you have a dispute with one or more other users, you hereby release the Covered Entities from any and all claims, demands, damages (actual and consequential), losses and liabilities of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to these disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to 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.”
Exceptions to Disclaimers and Exclusions of Damages
If you live in a jurisdiction that does not allow disclaimer of warranties or exclusion of damages, the foregoing disclaimers and exclusions may not apply to you. For New Jersey residents, the limitations set forth above are inapplicable where attorneys’ fees, court costs, or other damages are mandated by statute.
Timing of Claims
You must bring any claim you have against BrainsWay relating to these Terms or the Online Services within two years from the date of accrual of the applicable claim.
Legal Disputes and Arbitration Agreement
Initial Dispute Resolution
We are available by email at contact@brainsway.com to address any concerns you may have regarding your use of the Online Services. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
Terms of Service and Binding Arbitration Agreement
(NOTE: The following shall apply only with respect to disputes relating to the Online Services. This specifically excludes any disputes arising out of any separate agreements governing the purchase or lease of Brainsway’ s products, which shall be governed by the terms and conditions set forth in the specific agreements applicable to said transactions.)
If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to the preceding paragraph, then either party may initiate binding arbitration. All claims arising out of or relating to this Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Online Services shall be finally settled by binding arbitration administered by JAMS on a non-confidential basis in accordance with the provisions of its then-effective rules, including its streamlined procedures, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The procedures and rules of the Federal Arbitration Act shall exclusively govern the interpretation and enforcement of this arbitration provision and the parties hereby reject, waive and disclaim the application of any state Arbitration Act.
The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/rules-streamlined-arbitration/, or by calling JAMS at 1.800.352.5267. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, BrainsWay will pay the additional cost. A request for payment of fees should be submitted to JAMS along with your form for initiating the arbitration, and BrainsWay will make arrangements to pay all necessary fees directly to JAMS. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain cases.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of
arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception – Small Claims Court Claims
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30 Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the preceding three paragraphs by sending written notice of your decision to opt-out to the following address: Brainsway LTD, Hartom Street 19, Har Hotzvim Jerusalem 9777518 Israel or by fax to 1-844-386-7002. The notice must be sent within thirty (30) days of registering to use the Online Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those Sections. If you opt-out of these arbitration provisions, BrainsWay also will not be bound by them.
Exclusive Venue for Litigation
(NOTE: The following shall apply only with respect to disputes relating to the Online Services. This specifically excludes any disputes arising out of any separate agreements governing the purchase or lease of Brainsway’ s products, which shall be governed by the terms and conditions set forth in the specific agreements applicable to said transactions.)
Solely to the extent the arbitration provisions set forth above do not apply, or for purposes of either party enforcing an award granted to it pursuant to arbitration, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Wilmington, Delaware (except for small claims court actions which may be brought in the county where you reside). The
parties expressly consent to exclusive jurisdiction in Wilmington, Delaware for any litigation other than small claims court actions. The Parties irrevocably consent to personal jurisdiction in Wilmington, Delaware for any litigation and hereby waive, for all purposes, their right to challenge the lack of personal jurisdiction of Wilmington, Delaware over any litigation arising in connection with, out of, or as a result of (a) these Terms or the Online Services, and (b) any acts or omissions of any of the Covered Entities in connection with these Terms or the Online Services.
Copyright and Trademark
Unless otherwise noted, all materials appearing on the Online Services for public viewing are protected as the copyrights, trade dress, trademarks and/or other intellectual property of BrainsWay or its licensors. You may not remove or alter any copyright, trademark or other proprietary right notice in the Online Services. All rights not expressly granted are reserved.
BrainsWay is strongly committed to respecting intellectual property and other rights. As set forth in the following paragraphs, we have a policy of responding to notices of alleged copyright and trademark infringement that comply with applicable laws, including the Digital Millennium Copyright Act in the United States, and terminating accounts of repeat infringers in appropriate circumstances. To report a problem other than copyright or trademark infringement, please email contact@brainsway.com. We may, in our sole discretion, limit, suspend, or terminate any user’s access or account, delay or remove User Content, and take technical and legal steps to keep users from using the Online Services, if we think that they are creating problems or possible legal liabilities, infringing the intellectual property rights of third parties, or acting inconsistently with the letter or spirit of our policies (for example, and without limitation, circumventing temporary or permanent suspensions or harassing our employees or other users).
Digital Millennium Copyright Act (“DMCA”) Policy
BrainsWay will respond to proper notifications of claimed copyright infringement with respect to material posted by users, and will take appropriate action including removing and disabling access to the allegedly infringing material. We also will, in appropriate circumstances, terminate the accounts of registered users whom we find to be repeat infringers. We also may, in our discretion, suspend and/or terminate the account of any registered user who infringes another’s intellectual property right, whether or not there is repeat infringement.
If you believe your copyright has been infringed, you should submit notice to:
Copyright Agent
Legal Department, Brainsway LTD.
19 Hartom Street
Bynet Building
3rd Floor
Har Hotzvim, Jerusalem 9777518 Israel
1-844-386-7001
Any such notice should include the following:
If a notice of copyright infringement has been filed against material posted by you, you may make a counter-notification with our Designated Agent listed above, provided that such counter-notification must be in writing and contain the following requisite information:
If we receive a valid counter-notification, we may reinstate the removed or disabled material in accordance with the DMCA.
Links
Links provided within the Online Services will allow you to connect to other websites and services that are not under BrainsWay’s control. We do not endorse and are not responsible for the content of such websites and/or services. You access such websites and use such services at your own risk.
Errors and Inaccuracies
The Online Services may contain errors, inaccuracies or omissions related to product descriptions, pricing, promotions, offers, availability and other information. If any information in the Online Services is inaccurate, incomplete or out of date, we reserve the right to correct, change or update such information or to cancel orders related to such information (including after you have submitted an order) without prior notice and issue a refund for amounts paid.
Notice to California Residents
Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information: The provider of the Online Services is BrainsWay Ltd., d/b/a BrainsWay. To file a complaint regarding the Online Services or to receive further information regarding use of the Online Services, send a letter to the above address or contact BrainsWay via e-mail (with “California Resident Request” as the Subject Line). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at 916.445.1254 or 800.952.5210.
Changes/Updates
We will notify you of changes to these Terms by posting the amended terms on the Online Services and providing any advance notice required by law. We encourage you to keep the email address you provide to us current, and to promptly notify us of any changes to your email address, so that you may receive any notices we send to you regarding material changes to these Terms. If you do not agree to the new Terms, you should stop using the Online Services, and if you are a registered user, you may cancel your account with us within the notice period we specify by contacting us at contact@brainsway.com, and you will not be bound by the new Terms. Otherwise, the new terms will take effect on the date listed in the notice we provide. BrainsWay employees do not have the right to modify these Terms orally or otherwise. If any employee of BrainsWay offers to modify the provisions of these Terms except using the process described above, he or she is not acting as an agent for BrainsWay or speaking on our behalf.
Miscellaneous
Applicable Law
These Terms constitute a contract made solely over the Internet and you agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern these Terms and any claim or dispute that has arisen or may arise between you and BrainsWay relating to use of any aspect of the Online Services.
Entire Agreement
These Terms of Service and the terms and conditions incorporated in these Terms of Service by reference are the entire agreement between you and BrainsWay.
Severability
Except as provided in the Arbitration provisions above, if any provision of these Terms is unenforceable, the validity and enforceability of the remaining provisions will not be affected.
Waiver
Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of these Terms.
Contact BrainsWay
If you have questions regarding any of these Terms, you can call us at 1-844-386-7001 or write to us care of BrainsWay Customer Service, contact@brainsway.com.
