BRAINMASS LEGAL TERMS AND CONDITIONS

Welcome to BrainMass.com (the "Site"). The contents and services of the Site are provided by BrainMass Inc. of Newmarket, Ontario, Canada (referred to as "BM", "we," "us," or "our" herein) subject to the following terms and conditions:

1. Consent Required. PLEASE READ THESE LEGAL TERMS AND CONDITIONS ("TERMS") CAREFULLY BEFORE USING THIS SITE. Although you will be permitted to view some parts of the Site and avail yourself of some of the services offered herein without specifically and demonstrably agreeing to these Terms, your initial or continued use of the Site will constitute your consent to be bound by the Terms as described herein and as may be revised from time to time, as well as your consent to be bound by the BM Privacy Policy (http://www.brainmass.com/content/privacy_policy.php) and Copyright Notification Policy (http://www.brainmass.com/content/copyright_policy.php), which you acknowledge that you have read and understood. See s. 17 for procedures to terminate this agreement.
2. Services Offered. Through the Site, we provide the Post-A-Problem Service, the Submit-An-Essay Service, and the Solution Library Service including the Instant Download Service (which are collectively referred to in these Terms as the "Services"). Through the Services, we facilitate the exchange of information between student users of the Site (the "Students") and graduate student tutors (the "Online Teaching Assistants" or "OTAs") who have agreed to provide certain services to BM relating to a wide range of academic subjects in exchange for cash fees.
   
   By agreeing to the Terms, you are deemed to have represented and warranted to BM that you have attained the age of majority in the jurisdiction in which you reside (e.g. 19 years of age in the province of Ontario). By agreeing to these Terms you are further deemed to have agreed that you will never, for any reason whatsoever, make, or attempt to make direct contact with any BM OTA other than via the systematized methods provided by BM within its system. For greater clarity, you agree not to contact any OTA directly by telephone, email, fax, text message or any other communications medium outside of the BM Site and system.
3. Jurisdiction. The Services are offered via the Internet and the Students and OTAs are located throughout Canada, the United States and in other jurisdictions world-wide. The Site is controlled and operated from our offices in Newmarket, Ontario, Canada. BM makes no representation that the contents of the Site or the Services are appropriate, or available for use in, other locations. By agreeing to these Terms, you agree that your use of this Site shall be deemed to have occurred solely in the Province of Ontario, Canada. By using the Site from other locations, you do so on your own initiative and you are responsible for compliance with local laws. You further agree and acknowledge that these Terms and any dispute in connection with your use of the Site or the Services will be governed by the laws of the Province of Ontario, Canada, and the federal laws of Canada applicable therein. In the event of any dispute relating to the Site, the Services or the Terms, you expressly consent to the exclusive forum, jurisdiction, and venue of courts in Ontario.
4. Site Contents. This Site contains materials from a variety of sources including materials submitted by Students and OTAs. Site contents may be protected by copyright and moral rights as original literary, dramatic, musical or artistic works, including compilations and computer programs. BM has designed the Site and will use its best effort to ensure that copyright is not infringed. This results in some limitations on your use of the Site. In some circumstances, Students using the Site may benefit from an exception pursuant to which "fair dealing" or "fair use" of particular material does not infringe copyright. However, BM makes no warranty or assurance that any particular use of the Site or its downloadable content by any particular Student constitutes "fair dealing" or "fair use" for any purpose; you are advised to consult a lawyer before attempting to rely on any such exception in relation to your use of the Site.

   (a) Questions Not to Infringe Copyright. In using the Post-A-Problem Service, Students will compose and post questions on academic subjects, following system prompts provided. In submitting a question to the Post-A-Problem Service, Students are deemed to have warranted to BM that the question does not infringe copyright (for example, by reproducing a substantial part of a work, such as an assignment, journal article or textbook), moral rights or any other right of any third party. BM reserves the right to edit questions, as it deems necessary to ensure that copyright and moral rights are not infringed.

   (b) Prohibited Content. BM reserves the right to revise or delete any question from the Services for any reason whatsoever. Students are deemed to have warranted to BM that questions shall not include material that is false, defamatory, abusive, vulgar, hateful, harassing, obscene, pornographic, profane, threatening, or invasive of any person's privacy or intellectual property rights, violates any law or is otherwise inappropriate for the Services. Advertisements, chain letters and other forms of solicitation shall not be included. OTAs and others who feel that questions are objectionable are encouraged to contact BM by email. All material submitted to BM in connection with the Services, or otherwise posted on the Site, is subject to our Copyright Notification Policy (http://www.brainmass.com/content/copyright_policy.php), which you acknowledge that you have read and understood. BM may, within a reasonable time frame, and in its sole discretion and at a time of its choosing, determine that a question is inappropriate for the Services and revise or delete it. BM reserves the right to reveal information about Students, as BM deems advisable, in connection with complaints, legal actions, or bona fide allegations of plagiarism related to use of the Services.

   (c) License Granted to BM. In agreeing to these Terms and submitting questions to the Post-A-Problem Service, Students shall be deemed to grant BM an exclusive, perpetual, irrevocable, world-wide license to use the question in any way whatsoever, without compensation to the Student. Without limiting the generality of the foregoing, BM may reproduce the question in any media and incorporate it in other works such as the Solution Library database and in study guides or other publications, within or outside of the BrainMass system and Site. BM's rights herein may be sub-licensed to third parties in the sole discretion of BM. Students are deemed to have waived their moral rights, if any, in and to the questions.

5. Restrictions on Use of Materials. All of the Site contents, such as text, graphics, logos, images, audio and video clips, and software is the property of BM, or of parties that have assigned or licensed materials to BM, and is protected by Canadian and international copyright laws. Unless otherwise stated, no material from the Site may be copied, reproduced, republished, uploaded, posted, transmitted, communicated to the public by telecommunication, linked, framed, exploited or distributed by any means whatsoever, except that you may download or print a single copy of materials for the purpose of research or private study, provided that you maintain all copyright notices relating to such materials. Modification of the materials or use of the materials for any other purpose is a violation of copyright and other proprietary rights. You further agree that in no circumstance will you submit any materials purchased through or from BrainMass to any educational, testing, teaching or potential employer institution or body while representing that the materials are of your own creation.
6. Limited License to Use Software. Where users of the Site are permitted to download software in connection with the Services, such software, including any files or images incorporated in or generated by the software and any data accompanying the software (collectively, the "Software") is merely licensed to you by BM or others. This license is personal, non-transferable and non-assignable. Title to the Software is not being transferred to you. Although you may own the medium on which the Software is recorded, stored, displayed or used, BM, or others, retains copyright in and title to the Software and all other intellectual property rights therein. You shall not reproduce, redistribute, sell, decompile, reverse-engineer or disassemble the Software.
7. Trade Marks. BrainMass.com™ is a trade mark of BrainMass Inc. Other trade marks or trade names contained or referenced on the Site may be the trade marks or trade names of other owners.
8. Fees and Payment.
(a) Fees. BM and the Site use a system of "Credits", among other pricing mechanisms, purchased by its student customers from BM, and subsequently used by the students to pay for Services received from BM. Credits are non-refundable once purchased, and are held by BM’s customers in their secure individual accounts on the Site. Fees to purchase Credits and Library Solutions are payable in the currency and at the rates as indicated on the various payment and check-out pages within the Site at any point in time. BM reserves the right to revise its fee schedule, currency and terms from time to time and without advance notice. Such amendments will be posted on the Site. (b) Payment through Service Provider. All payments to BM relating to your use of the Services shall be by credit card or other online payment system provided by third party service providers selected and utilized by BM. Currently, such payments shall be made through the services of InternetSecureTM Inc. ("InternetSecure") or PayPalTM ("PayPal"). For further information, see their Internet web sites at www.internetsecure.com and www.paypal.com. Currently, through these third party service providers, the following credit cards may be used to pay for BM services: VISA, MASTERCARD, AMERICAN EXPRESS and DISCOVER. InternetSecure and PayPal are solely responsible for all aspects of all credit card transaction processing, including those relating to privacy and security. Prior to using the Services, you should review the privacy policy of whichever provider you are using. Information may be obtained from the providers’ respective websites as noted above.
9. Non-Payment Policy. Users are required to pay for Post-A-Problem and Submit-An-Essay responses as soon as they are created and prior to delivery to the user. Once an OTA has responded to a posting, the user must log into his/her personal BM account, purchase Custom Credits (unless previously purchased) and Pick Up the posting, thereby delivering the appropriate payment to BrainMass and the OTA. Failure to pay for responses (payment default) will be acted on as follows.

   Reminder Email: If a response is not picked up within 12 hours of its creation, student users are sent a reminder email.

   First Warning: Sent 24 hours after response is created if not picked up.

   Second Warning: Sent 48 hours after response is created if not picked up.

   Third Warning: Sent 72 hours after response is created if not picked up. The user account is suspended indefinitely. Any custom credits that are on-hand in a student account at the time a Third Warning is issued will be allocated appropriately to the payment for the solution in question.

   Indefinite Suspension. An indefinite suspension is a suspension of a user's privilege to use the BM site for more than 60 days with no definite reinstatement date. Indefinite suspensions are generally reserved for the more serious or repeated violations of BM rules. Indefinitely suspended users may be reinstated by BM in its sole discretion, though BM may determine at any time that the suspension is permanent. Users who have been indefinitely suspended may not register with BM during the suspension, nor may they use the BM site in any way.

10. Links to Other Sites. The links contained in the Site enable you to leave the Site and connect directly to the sites of others. Such linked sites are entirely independent of the Site. BM provides such links only as a convenience. Links do not imply BM's endorsement or approval of or any affiliation between BM and such site's provider, or the information, products or services made available through the linked site.
11. Disclaimer. Unless otherwise provided, the contents of the site are provided on an "as is" and "as available" basis and without warranties of any kind, either express or implied. To the fullest extent permitted by applicable law, BM, its affiliates and licensors disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, any information contained in the Site or on any site to which it is linked. BM, its affiliates and licensors do not warrant the functions, information or links contained on the site or that its contents will meet your requirements, that the Site, or its contents, are fit for any particular purpose or that the operations of the Site or its contents will be uninterrupted or error-free, that defects will be corrected, or that the Site or the server that makes it available are free of viruses, worms or other harmful components. BM, its affiliates and licensors do not warrant or make any representations regarding the use or the results of the use of the materials and/or services provided by or through the Site in terms of their correctness, accuracy, reliability, security or otherwise. You (and not BM) assume the entire cost of any necessary servicing, repair or correction that may result from your use of the Site.
12. Limitation of Liability. Under no circumstances, including, but not limited to negligence, shall BM, its subsidiaries or affiliated companies or licensors or their directors and officers, be liable for any special or consequential damages that result from the use of, or the inability to use, the Site, even if BM has been advised of the possibility of such damages. In no event shall BM’s total liability to you for all damages, losses, and causes of action (whether in contract, tort [including but not limited to negligence] or otherwise) exceed the amount paid by you, if any, for using the Site or the Services.
13. Indemnification. To the maximum extent permitted by applicable law, you will defend, indemnify and hold BM, its affiliates and related companies, and any of their respective directors, officers, employees, consultants and agents, harmless from and against all claims, liability, and expenses, including all legal fees and costs, arising out of either (a) your breach of any provision of these Terms or (b) your use of the Site and its contents. BM reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any action, claim or matter otherwise subject to indemnification by you. You will co-operate as fully as reasonably required in the defense of any claim.
14. Severability. If any provision of these Terms shall be found to be unlawful, void and unenforceable, then such provision shall be deemed severable from these Terms and will not affect the validity and enforceability of the remaining provisions of these Terms.
15. Performance & Site Complaints, Issues and Customer Service. If, pursuant to your use of the Site or purchase of any of the BM Services, you have any dissatisfaction or difficulty of any description whatsoever, you agree that you will first contact BM by email at operations@brainmass.com or by telephone at the number listed on the Site, prior to contacting your bank, credit card company, PayPal or InternetSecure, to seek resolution to your issue.
16. Amendments to Terms. BM reserves the right to make changes to this Site and to modify these Terms at any time. You should review these Terms on a regular basis. Your continued use of the Site following amendments to these Terms shall constitute your acceptance of them.
17. Termination. These Terms are effective until they are terminated by BM or by you. You may terminate this agreement at any time by contacting BM customer support by e-mail at agreement@brainmass.com, in which case, termination is effective at the end of the business day following the day on which your termination notice is actually received by BM, and your accounts with BM will be closed at that time. These Terms will terminate immediately without notice from BM if, in BM’s sole discretion, acting reasonably, you fail to comply with any material provision or these Terms, including those relating to the content of questions, direct contact or attempted contact with OTAs, use of any materials purchased from BM or if BM reasonably believes that you have violated any applicable law or have acted contrary to the best interests of the Site, BM or any of its affiliates or associates. This Agreement will automatically terminate and your accounts with us will be closed upon passage of an uninterrupted twenty-four (24) month period during which you do not purchase or spend any BM Credits. Upon termination of this agreement, for any reason whatsoever, you agree that you will continue to be bound by the following provisions that shall survive termination: sections 3, 4, 5, 6, 9, 10, 11, 12, 13, and 14.
18. English Language. The parties have requested that these Terms be drawn up in English. Les parties aux présentes ont exigé que cette entente et tous autres documents envisagés par les présentes soient rédigés en anglais.
19. Privacy and Security. By agreeing to these Terms you recognize and agree that: (i) the Internet is not a secure medium, and neither the privacy of your use of or communications via the Site can be guaranteed; (ii) the nature of Internet communications means that your communications may be susceptible to data corruption, unauthorized access, interception and delays; (iii) the Site may include incomplete information, inaccuracies or typographical errors; (iv) BM and any other persons involved with the Site may make changes in the contents of the Site at any time without notice; (v) BM shall not be responsible for any detrimental reliance you may place on the Site or its contents; and (vi) use of the Site is on an "as is" basis and is strictly at your own risk. As payments for the Services are made through third party Service Providers as described in s.8 (b) above, you should review their privacy and security policies, at http://www.internetsecure.com/privacy.html, and http://www.paypal.com. In agreeing to these Terms, you recognize and agree that although the security efforts of BM, the Service Providers and its other partners are generally consistent with standard industry practice, your complete privacy, confidentiality and security associated with any communications between us is not possible over the Internet, and therefore cannot be guaranteed. As a result, BM shall not be responsible or liable for any loss of privacy, disclosure of information, harm, damage or loss that may result from your transmission of any information to us in any connection with the Site.

© BrainMass Inc. 2009
Last Updated March 10, 2009