Welcome to AIBrain, Inc. (“AIBrain”) and Tyche! Our interactive Tyche application (the “App”) works with our Tyche robots that are available for purchase online. By downloading and using the App, you acknowledge and agree to comply with these Terms.
BY DOWNLOADING THE TYCHE APP AND/OR USING THE TYCHE APP, YOU ACKNOWLEDGE AND AGREE THAT: (A) YOU HAVE READ ALL OF THESE TERMS (INCLUDING ANY THIRD PARTY TERMS CONDITIONS THAT ARE REFERENCED IN THESE TERMS); (B) YOU UNDERSTAND ALL OF THESE TERMS; AND (C) YOU AGREE TO BE BOUND BY THESE TERMS AND ALL APPLICABLE LAWS. AMONG OTHER MATTERS, THESE TERMS INCLUDE INFORMATION ABOUT FUTURE CHANGES TO THESE TERMS, LIMITATIONS OF LIABILITY, A CLASS ACTION WAIVER, AND THE PROVISION FOR RESOLUTION OF DISPUTES BY ARBITRATION RATHER THAN BY LITIGATION IN COURT.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, AIBRAIN DOES NOT GRANT YOU (OR YOUR CHILD(REN)) THE RIGHT TO USE THE APP OR THE SERVICES.
THESE TERMS ARE AN ENFORCEABLE AGREEMENT BETWEEN YOU AND AIBRAIN. ANY USE OF THE APP IN VIOLATION OF THESE TERMS MAY RESULT IN, AMONG OTHER CONSEQUENCES, THE TERMINATION OR SUSPENTION OF YOUR RIGHT TO USE THE APP AND OTHER SERVICES.
For purposes of these Terms, “AIBrain”, “Tyche”, “We”, “Us”, or “Our” means AIBrain and its investors, directors, officers, employees, agents, representatives and assigns. “You” means each person who accesses or uses the App, including but not limited to your child(ren), whether or not such person personally downloaded and/or installed the App. “Your children” or “your child” means your child, your children, or a child or children under your guardianship or supervision.
CONSENT TO USE OF DATA AND COMMUNICATIONS
ACCOUNT CREATION AND REQUIREMENTS
By creating an account for the App (an “Account”), you represent and warrant that you are thirteen (13) years of age or older. If you are under 13 years old, you are only permitted to use the App if your parent or legal guardian has provided Parental Consent for you to do so.
You agree that you will (i) provide complete, current and accurate information about yourself as may be prompted by account registration forms via the App (the “Registration Data”); (ii) maintain the security of your password and registration information; (iii) promptly update or correct any of your Registration Data to be sure it remains complete, current and accurate; and (iv) assume all risks of unauthorized access to your Registration Data and any other information you provide to AIBrain. You acknowledge and agree that it is your responsibility to safeguard the password that you use to access the Services.
When you register for the Services, or change your password, please use a strong password, including a combination of upper and lower case letters, numbers, or symbols. We advise that you not use the same password for the Services that you use for other applications or services.
LICENSE AND OWNERSHIP
Subject to the terms and conditions of these Terms, AIBrain grants you a nonexclusive, non-transferable, non-sublicenseable, and revocable license to use the App with Tyche robot(s) that you own or control, for your own personal, non-commercial use. The terms of this license also will govern any upgrades or new versions provided by AIBrain that replace or modify the App, unless such replacement or new version is governed by a separate license, in which case the terms of that separate license will govern.
Except for this express license, you are not granted any rights in or to the App or any other Services, whether by implication, estoppel, or any other legal theory. All rights in and to the App are hereby reserved and retained by AIBrain. All information, materials and content contained in or used by the Services, including any text, graphics, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, source and object code, format, queries, algorithms, and other content (collectively, the “AIBrain Material”) is the sole property of AIBrain or is used by AIBrain with the permission of its suppliers. This AIBrain Material is protected in all forms, media and technologies now known or hereinafter developed.
You agree that you will not, nor will you authorize or allow any third party to, do any of the following things:
- copy, reproduce, modify, hack or distribute the App;
- make the App available over a network where it could be used by multiple devices at the same time;
- sell, license, rent, assign, lease, lend, redistribute or sublicense the App;
- modify, port, translate, or create derivative works of the App;
- decompile, disassemble, reverse engineer or otherwise attempt to derive, reconstruct, identify or discover any source code, underlying ideas, or algorithms of the App (except as, and only to the extent that, any of these restrictions are prohibited by applicable law);
- submit any automated or recorded requests to the App or the Services;
- use the App for commercial purposes;
- use the App for benchmarking purposes or comparison with any products or services made available by third parties;
- knowingly take any action that would cause the App to be placed in the public domain or otherwise infringe upon or violate the rights of AIBrain.
- remove, alter or obscure any copyright, trademark or other proprietary rights notices or labels on or in the App;
- Use the App in any manner that could damage, disable, overburden or impair the functioning of the App or the Services; or
- Use the App for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity or any activity that violates these Terms.
If you violate any of the above restrictions, your right to use the App is automatically revoked and you may be subject to prosecution for intellectual property infringement and damages. AIBrain reserves all rights not expressly granted in these Terms.
USER CONTENT AND CONDUCT
AIBrain may offer community features, such as forums, as part of the Services. You must be over the age of 13 to participate in any community features, unless AIBrain has obtained Parental Consent to your participation. In addition, AIBrain may allow you to submit information to AIBrain through forms and other methods in connection with obtaining customer support from AIBrain’s support team. You may post or provide reviews, comments, images, logos, photos, descriptions, and other content, as well as suggestions, comments, questions, opinions and feedback (separately or together, the “User Content”).
By posting or providing User Content or otherwise sharing information via the internet, you represent and warrant that you are the owner or otherwise have the right to publicly distribute the User Content. Any User Content provided or published will be considered public, and AIBrain will not be responsible for the actions of Users with respect to any public information. By creating any software programs for your robot, you represent and warrant that you are the owner or otherwise have the right to use such software programs.
You may not post or upload any User Content that:
- is illegal, libelous, offensive, harmful, obscene, pornographic, threatening, defamatory or invasive of privacy, including User Content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
- exploits people in an abusive, violent or sexual manner or that promotes illegal activities or provides instructions on how to conduct illegal activities.
- violates the intellectual property rights (including any privacy or publicity rights) of any third party, including photos, videos or files, that contain software or any other materials.
- consists of or contains computer viruses, political campaigning, objectionable materials, commercial solicitations, chain letters, mass mailing or any form of “spam”.
- You know to be false or innacurate.
You may not use a false email address or impersonate any person or entity when using the Services. AIBrain reserves the right (but not the obligation) to remove or edit any User Content, at its sole discretion.
AIBrain does not pre-screen, review, edit or approve any User Content. If AIBrain becomes aware of any inappropriate User Content, AIBrain may, in its sole discretion, remove or disable access to such User Content.
You grant to AIBrain a non-exclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute and display any User Content that you provide throughout the world in any media, including, without limitation, for troubleshooting, marketing, product development and any other commercial or non-commercial purpose in AIBrain’s sole discretion, without payment or compensation to you of any kind. You warrant and represent that you own or otherwise control all of the rights to the User Content that you post or upload; that the User Content is accurate; that the use of the User Content you supply does not violate these Terms or applicable laws, rules or regulations; and that it will not cause injury to any person or entity. You will indemnify AIBrain for all claims resulting from User Content you supply. AIBrain has the right, but not the obligation, to monitor and edit or remove any activity or User Content. AIBrain takes no responsibility and assumes no liability for any User Content provided by you or any third party.
If you provide AIBrain with any feedback, comments or suggestions regarding the App, the Services or the Tyche robot (the “Feedback”), such Feedback shall be owned by AIBrain as its confidential information. As such, AIBrain will be free to use, disclose, reproduce, license and otherwise distribute and/or exploit the Feedback in our sole discretion, without restriction of any kind or nature. You understand and agree that AIBrain may modify, enhance and add features to the Tyche robot, App and/or Services based on your Feedback, and that you waive all rights to the Feedback as communicated to AIBrain by you or your child(ren).
SPEECH DATA, RECORDINGS AND THIRD PARTY COMPONENTS’ USE OF SPEECH DATA AND RECORDINGS.
You acknowledge and agree that, when you interact with Tyche, the App may capture an image of your face and audio and video recordings of such interactions (the “Recordings”). AIBrain and its licensors and contractors may use, transcribe and store such Recordings and the data contained therein (the “Data”), including your voice and likeness as captured therein, to provide and maintain the App, to develop, tune, test, enhance or improve the technology and algorithms, and to develop models for research and development purposes. AIBrain and/or its licensors will not use the Data for any purpose other than that described above. Since audio and image files are Personal Information under the Children’s Online Privacy Protection Act, AIBrain must have received Parental Consent before saving or storing any Recordings of children under 13. Therefore, the foregoing does not apply to children under 13 until such Parental Consent is obtained.
The App will allow you, the account holder, to share certain Recordings that you (and/or your child(ren)) create using the App with others by sending a message, or by sharing on your website or third party websites (including Facebook, Twitter, and YouTube (each, a “Third Party Site”)). Please remember that, if you share Recordings with a Third Party Site, such Recordings will become subject to the Third Party Site’s website terms of service and similar rules.
You acknowledge and agree that you (on behalf of yourself and your child(ren)) release and discharge AIBrain, its employees, agents, contractors, officers and directors (the “AIBrain Parties”) from all liability to you and your child(ren) for any claims that the use of the Recordings by AIBrain, or any party on its behalf, violates any of your rights, including any intellectual property, privacy, or publicity rights. In addition, you (on behalf of yourself and your child(ren)) covenant not to sue any AIBrain Parties with respect to any Recordings. You also acknowledge and agree that neither you nor your child(ren) will be entitled to any compensation for the use of any of the Recordings by AIBrain or a party on its behalf.
MODIFICATIONS TO THE AIBRAIN APP
AIBrain reserves the right in its sole discretion to review, improve, modify or discontinue, temporarily or permanently, the App, the Services and/or any features, information, materials or content on the App or the Services with or without notice to you. You agree that AIBrain will not be liable to you or any third party for any modification or discontinuance of the App or any portion thereof.
THIRD PARTY COMPONENTS
THIRD PARTY WEBSITES
The Services may contain links or connections to third party websites or services not owned or controlled by AIBrain. Further, using the Services may require you to transact with third parties, such as for your internet connection. AIBrain is not responsible for these third party services or websites. If you leave the Services or are interacting with a third party, please read the terms and conditions and privacy policies of each third party website or service that you are using or visiting. AIBrain assumes no responsibility for the content, accuracy, or practices of any third party website or service or individual. You acknowledge and agree that you release and hold AIBrain harmless from any and all liability relating to your interactions with any third party or use of any third party services or websites.
TRADEMARKS (check Third Party stuff)
“Tyche,” the Tyche logo, “AIBrain,” the AIBrain logo, and any other AIBrain product name or service name are trademarks of AIBrain and may not be copied, imitated or used, in whole or in part, without AIBrain’s prior written permission. Further, the look and feel of the App, including any custom graphics, button icons and scripts are the service marks, trademarks, and/or trade dress of AIBrain and may not be copied, imitated or used, in whole or in part, without AIBrain’s prior written permission.
All other trademarks, registered trademarks, product names, and company names or logos mentioned in the App (“Third Party Trademarks”) are the property of their respective owners, and the use of such Third Party Trademarks will inure to the benefit of each such third party trademark owner. The use of such Third Party Trademarks is intended to denote interoperability and does not constitute: (i) any affiliation by AIBrain or its licensors with such company; or (ii) any endorsement or approval by such company of AIBrain and its licensors and its products or services.
MODIFICATION OF TERMS
AIBrain reserves the right to modify these Terms, at any time and in its sole discretion by posting the modifications via the Services. In our discretion, we may provide you with notice of modifications via email or some other form of notice as we determine. Modifications will only become effective at the end of the 30 day period beginning on the posting of the modifications via the Services (the “Notice Period”), unless we otherwise notify you. If you disagree with any of the modifications, please stop using the Services within the Notice Period. Your use of the Services after the expiration of the Notice Period will constitute your agreement and acceptance of the modifications. Notwithstanding the foregoing, we recommend that you review the Terms at least every 30 days to be sure that you understand the Terms then currently in effect.
SUSPENSION AND TERMINATION
AIBrain may suspend and/or terminate your rights with respect to the App and/or Services for any reason or no reason at all and with or without notice in our sole discretion. Suspension and/or termination may include restricting access to and use of the Services. If your rights with respect to the App or Services are suspended and/or terminated, you agree to make no further use of the App and Services during the suspension period or after termination. AIBrain reserves the right, but does not undertake any duty, to take appropriate legal action including, but not limited to, the pursuit of civil, criminal and/or injunctive relief against you for continuing to use the App and Services during suspension or after termination, and you agree that AIBrain may recover its reasonable attorney’s fees and court costs from you for such actions. These Terms will remain enforceable against you during any suspension period or after termination. All of the terms and conditions of the Terms survive any termination of the Terms (except for the sections entitled “License,” and “Consent to Use of Data and Communications.”)
You agree, at your sole expense, to defend, indemnify and hold us and our licensors harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to: (i) your use of the Services; (ii) your breach (or alleged breach) of these Terms or any applicable law, (iii) your infringement, or alleged infringement of the rights of any third party.
NO THIRD PARTY BENEFICIARIES
Except as otherwise expressly set forth elsewhere in these Terms, there will be no third party beneficiaries to the Terms.
TO THE FULLEST EXTENT PERMITTED BY LAW, AIBRAIN MAKES NO REPRESENTATIONS OR WARRANTIES THAT ITS SERVERS ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. IF YOUR USE OF THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA OR ANY OTHER COSTS, AIBRAIN IS NOT RESPONSIBLE FOR THOSE COSTS. EXCEPT FOR ANY LIMITED WARRANTIES IN THE USER GUIDE AND OTHER PACKAGING MATERIALS INCLUDED WITH YOUR TYCHE ROBOT AT THE TIME OF PURCHASE, THE APP AND THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND AIBRAIN, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. AIBRAIN MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT IN THE SERVICES.
LIMITATION OF LIABIILTY
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL AIBRAIN BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THE APP, THE AIBRAIN MATERIAL, ANY AIBRAIN PRODUCTS OR SERVICES, THE RECORDINGS, THIRD PARTY SITES OR THIRD PARTY TRADEMARKS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED, PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY,) AND EVEN IF AIBRAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMGES. AIBRAIN’S AGGREGATE LIABILITY IN CONNECTION WITH YOUR USE OF THE APP AND THE SERVICES SHALL NOT EXCEED FIFTY UNITED STATES DOLLARS ($50 USD).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
APP STORE AND/OR GOOGLE PLAY STORE
You acknowledge and agree that the availability of the App is dependent upon the third party from which you received the App: e.g., the Apple App Store or the Google Play Store (together or separately, the “App Dispenser”). You acknowledge and agree that these Terms are between you and AIBrain and not with the App Dispenser. AIBrain, not the App Dispenser, is solely responsible for the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the App Dispenser in connection with the App, if any. You further agree that you will comply with all terms and conditions of the App Dispenser that govern your access to, and use of, the App Dispenser website and service. You further agree to comply with, and your license to use the App is conditioned upon your compliance with, all other applicable third party terms of agreement when using the App. In the event of any conflict between these Terms and those of the applicable App Dispenser, the relevant terms of the App Dispenser will govern to the extent they are more restrictive than these Terms.
You further acknowledge and agree that AIBrain, and not the App Dispenser, is responsible for any and all maintenance, support, product-related claims (including product liability, the App’s violation of law, and any consumer protection or similar claims) and any claims that the App infringes the intellectual property rights of a third party.
NOTICE OF AVAILABILITY OF FILTERING SOFTWARE
Pursuant to the Communications Decency Act, AIBrain hereby advises you that parental control protections (such as computer hardware, software, or filtering services) are available that may assist in limiting access to material that is harmful to minors. Information regarding current providers of such protections can be found at www.getnetwise.org and www.safety.com, or in the following web directories: Internet Blocking and Filtering Software and Filtered Access.
In accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”), the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf , and other applicable law, AIBrain has adopted a policy of terminating, in appropriate circumstances and at AIBrain’s sole discretion, Account holders who are deemed to be repeat infringers. AIBrain may also, at its sole discretion, limit access to the Services and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. AIBrain will respond to claims of copyright infringement committed using the App or Services that are reported to AIBrain’s Designated Copyright Agent, identified in the sample notice below.
If you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
If you are a copyright owner, or are authorized to act on behalf of one, or are authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the App or the Services by completing the DMCA Notice of Alleged Infringement and delivering it to AIBrain’s Designated Copyright Agent as described in the next Section. Upon receipt of the Notice as described below, AIBrain will take whatever action, in its sole discretion, it deems appropriate, which may include removal of the challenged material from the App or Services.
DMCA NOTICE OF ALLEGED INFRINGEMENT (THE “NOTICE”)
In your Notice, identify the copyrighted work(s) that you claim has or have been infringed and identify the material that you claim is infringing (or the subject of infringing activity) and that you believe should be removed or access thereto should be disabled, including information reasonably sufficient to permit us to locate the material, including at a minimum if applicable, the URL of the link shown on the App where such material may be found.
Please also provide your mailing address, telephone number, and email address.
Include both of the following statements in the body of the Notice: (i) “I hereby state that I have a good faith belief that the disputed use of the copyright material is not authorized by the copyright owner, its agent, or the law (e.g., as “fair use”)” and (ii) “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature, and deliver the Notice to AIBrain’s Designated Copyright Agent:
68 Willow Road
Menlo Park, CA 94025
You may not use or export or re-export the App except as in compliance with all applicable laws, including but not limited to the export and other laws of the United States and the laws of the jurisdiction in which the App was obtained. The App may not be exported or re-exported: (i) into any United States embargoed countries, or (ii) to any person or entity on the US Treasury Department’s list of Specially Designated Nationals or the US Department of Commerce Denied Persons List or Entity List. By using the App, you represent and warrant that you are not located in any such country or named on any such list. You also agree that you will not use the App for any purposes prohibited by applicable law, including all laws of the United States regarding the development, design, manufacture or production of nuclear, chemical or biological weapons or missiles.
US GOVERNMENT RIGHTS
The App and related documentation are “Commercial Items,” as that term is defined at 48 CFR §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms re used in 48 CFR §12.212 or 48 CFR §227.7202, as applicable. Consistent with 48 CFR §12.212 or 48 CFR §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States.
GOVERNING LAW AND ARBITRATION
These Terms are governed by the laws of the State of California, United States of America, without reference to its rules regarding conflicts of laws, and by the Federal laws of the United States of America.
You and AIBrain agree to arbitrate any dispute arising from the Terms or relating to the Services or the Tyche robot, except that you and AIBrain are not prohibited from seeking equitable or other relief in the courts for the alleged unlawful use of intellectual property or intellectual property rights, including patents, trademarks and copyrights.
You and AIBrain agree that you will notify each other in writing of any dispute within 30 days of when it arises, that you will attempt informal resolution prior to any demand for arbitration, that any arbitration will occur in the County of Santa Clara, in the State of California in accordance with the Rules of the American Arbitration Association. You and AIBrain also agree that the state or federal courts located in the County of Santa Clara, State of California, shall have exclusive jurisdiction over any appeal of an arbitration and over any lawsuit between the parties that is not required to be arbitrated. Other than the class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court.
Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU ACKNOWLEDGE AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND AIBRAIN ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Disputes Among Users:
If there is any dispute among users of the Services, or between users and any third party, AIBrain is under no obligation to become involved in that dispute. In the event of a dispute between you and another user or a third party, you hereby release AIBrain, its officers, directors, employees, agents, and successors from claims, demands, and damages of every kind and nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, in any way related to such dispute and/or the Services. If you are a resident of the State of California, you shall and hereby do 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 or her favor at the time of executing the release, which, if known by him or her must have materially affected his or settlement with the debtor.”
If you need or wish to contact AIBrain with respect to any questions, complaints, or claims with respect to the App, please write to AIBrain at the following address:
68 Willow Road
Menlo Park, CA 94025
Last revised: May 2017