TERMS AND CONDITIONS

Effective from June 5th, 2017.

We are Brainbow Limited, a company registered with Companies House in England and Wales under number 08085754 whose principal place of business is at 120 Holborn, London, EC1N 2TD (“Brainbow”/“we”/“us”/”our”). We provide online content accessible from websites such as www.peak.net (the “Websites”) and a number of mobile applications, including ‘Peak’ (“Apps”). For the purpose of these terms and conditions (“terms”), we refer to the online content we provide, including the Websites and the Apps as the “services”. These terms apply to us and all users of our services (“you”/”your”). They govern your access to, downloading and use of all the services.

Please read these terms carefully before using any of the services. They are a legal agreement between you and Brainbow. Using any of the services indicates that you accept these terms. If you do not accept these terms, please do not use the services, leave the Website, cease downloading the App, or leave the App.

1. Acceptance and updating of these terms

By using our services, you confirm that you have read and understood these terms and agree to abide by them. You confirm that you are old enough to enter into a binding agreement with us, and if not, that you have the permission of your parent or legal guardian, who will take responsibility for your compliance with these terms. You warrant that you are the owner of the device to which you have downloaded any App, or that you have obtained permission from the owner of that device to download the App. You accept responsibility in accordance with these terms for the use of Apps on any device, whether or not that device is owned by you.

Brainbow may update these terms from time to time. If any changes to the terms are made, we will notify you. From time to time, updates to Apps may be issued through your app store provider. Depending on the update, you may not be able to use an App until you have downloaded the latest version of the App and accepted any new terms.

2. Fees and payment

Some services are free for you to use. Some services require a payment from you. Some services may be free for a period, but then require a payment which may be taken automatically. Any particular payment terms of any paid for services will be made clear to you before you agree to pay for them and the relevant payment terms shall be incorporated into these terms by reference. When purchasing services such as a premium App you may make your purchase through one of our Websites or from an app store provider such as the Google Play Store. If from an app store provider, as well as these terms, you will be subject to the terms of that app store provider.

We may change the price and nature of services at our discretion, but if you are paying for services, we will always give you notice should the price change, or there is a significant change in the nature of the services that you are using. We accept no responsibility for any losses you may incur by failing to change or cancel a subscription after we have informed you of any changes to pricing or nature of services.

You may pay for certain services (either via one of our Websites, from within one of our Apps, or via an app store provider) using an auto-renewing subscription. This means your subscription will be automatically renewed at the end of each subscription period unless you cancel it. If you do not cancel it you will be charged in advance for the next subscription period. Auto subscriptions can be modified or cancelled by changing your settings with the appropriate app store provider, or if you purchased the services directly from us, from within the service purchased (eg the App), or by contacting us at support@peak.net. If you cancel a subscription you cannot claim a refund for the period remaining until the end of the subscription period in which you cancelled.

If you think that you may be entitled to a refund for services and you purchased those services from one of our Websites or from within one of our Apps you can contact us at support@peak.net. If you purchased the services from an app store provider then you should contact that app store provider as we will be unable to process such refund requests.

3. Your account

You may have to create an account and provide us with a password before you can use some of our services. You are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur under your password or account. Each account must be used by you and nobody else and is not transferable. You shall immediately notify Brainbow should you suspect any unauthorised use of your account or password, you shall provide true, up-to-date and complete information about yourself during registration and ensure this information remains up-to-date.

4. Promotion and marketing offers

We may offer promotional offers from time to time which may include discount codes or account credits, may be subject to expiration dates and may only be applicable to selected users of a service. We reserve the right to withhold or remove credit from a user account or end a promotion without notice if at our sole discretion we believe a user is not acting in good faith in relation to the terms of the promotion.

5. Intellectual property and licence grant

Brainbow owns all intellectual property rights in its services including without limitation its Apps and Websites, including all software and all images, sounds, music, text, icons and other content (“Content”) used within those services (other than User Generated Content) as well as the arrangement of that Content.

Brainbow grants you a limited, personal, non-transferable, non-sublicensable, worldwide and non-exclusive licence to use its services for non commercial use only and solely in accordance with these terms and any rules or policies applied by any app store provider or operator from whose site you downloaded an App. The grant and continuation of the above licence is conditional upon your compliance with these terms, our Privacy Policy and any rules or policies applied by any app store provider from which you downloaded an App. You shall not (and shall not allow any third party to), except to the extent expressly permitted under applicable law, copy, modify, frame, create a derivative work from, reverse engineer, reverse assemble, or otherwise attempt to discover any source code in the services.

You shall not sell, rent, lease, loan, redistribute, assign, sublicense, republish, grant a security interest in or otherwise transfer any right in the services, in whole or in part.

You shall not remove or modify any copyright and/or other intellectual property notices or watermarks from any Content. Nothing in these terms grants you a licence to use any Brainbow trade marks or the trade marks of any third parties in the services.

6. User Generated Content and your use of the services

Other than personal data (which is covered under our Privacy Policy), any material which you create and which you transmit or post using the services (“User Generated Content”) shall be considered non-confidential and non-proprietary. Brainbow shall have no obligations with respect to such material. You are solely responsible for such material. Brainbow shall be free to copy, disclose, distribute, incorporate and otherwise use such material and all data, images, sounds, text and other things embodied therein for any and all commercial or non-commercial purposes.

You are prohibited from posting to or transmitting using the services any material:

  1. that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy or which may cause annoyance or inconvenience;
  2. for which you have not obtained all necessary licences and/or approvals;
  3. which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party, in any country in the world;
  4. which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data);
  5. contains or discloses another person’s personal information without his or her written consent; or
  6. collects or solicits another person’s personal information for commercial or unlawful purposes.

Brainbow shall be entitled to remove any material from its services which is posted to or transmitted using the services in contravention of these terms, or for any other reason.

You shall not:

  1. use the services or any Content in any unlawful manner;
  2. misuse the services (including, without limitation, by hacking or inserting malicious code);
  3. infringe our or any third party’s intellectual property rights in your use of the services or Content;
  4. use the services to transmit chain letters, junk or spam;
  5. use services to harass, abuse or harm another person;
  6. take any action that in our sole discretion places an unreasonable or disproportionately large load on our servers or other infrastructure; or
  7. use the services in any way which may cause, or be likely to cause, access to or use of the services to be interrupted, damaged or impaired in any way.

7. Privacy

We are committed to respecting your privacy and the privacy of all individuals using the services. More information regarding how we may use your personal data can be found in our Privacy Policy. By using any of the services, you agree to the terms laid out in our Privacy Policy which is incorporated into these terms by reference.

8. Termination of services

We may terminate your access and use of the services (or any of them) and these terms at our discretion if we have good reason to believe you have breached these terms. In such circumstances you are not entitled to any refund. We may modify or discontinue, temporarily or permanently, the services (or any part of them) at our discretion. We will give you notice of such modification or discontinuance wherever possible. You agree that Brainbow shall not be liable to you or to any third party for any modification or discontinuance of the services.

You may discontinue your use of the services (or any part of them) at any time.

On termination of these terms for any reason:

  1. all rights granted to you under these terms shall cease;
  2. you shall no longer have access to any services;
  3. you must immediately cease all activities authorised by these terms; and
  4. you must immediately delete or remove Apps from your devices.

9. Links to and from other apps and websites

Any links to third party apps and websites are provided solely for your convenience. We have not reviewed all of these third party apps and websites and do not control and are not responsible for these apps/websites or their content or availability. We do not endorse or make any representations about them, or any material found there, or any results that may be obtained from using them. If you decide to access any of the third party apps/websites linked to from our services, you do so entirely at your own risk.

10. Indemnity

You indemnify and hold Brainbow, and its affiliates, and its and their officers, directors, agents and employees, harmless from any losses, damages, costs, expenses (including reasonable legal fees) or other liability, arising out of any claim, demand, allegation or proceeding brought by any third party due to or arising out of any breach by you of any of these terms or applicable law; your misuse of the services; User Generated Content you provide or post; your infringement of intellectual property rights or any other third party rights; and/or your failure to provide accurate, up to date information.

11. Disclaimers

The material within the services is provided "as is", without any conditions, warranties or other terms of any kind (other than those required by applicable law and which cannot be excluded by contract) and is used by you at your own risk. Accordingly, to the maximum extent permitted by law, we provide you with the services on the basis that we exclude all representations, warranties, conditions and other terms which, but for these terms, might have effect in relation to the services.

While we endeavour to ensure that the Content contained within the services is correct, we do not warrant the accuracy and completeness of that Content. We may make changes to the Content at any time without notice. The Content may be out of date and Brainbow makes no commitment to update such material.

Brainbow does not provide medical advice and the services are not provided for the purpose of treating, assisting with, or providing any advice in relation to, any medical conditions. Brainbow makes no claims, representations or warranties that the services provide any medical or therapeutic benefit. Any health information included in the services or linked to from the services is for general information purposes only and should not be relied upon. If you want medical advice you should contact a doctor. If you have an existing condition such as epilepsy, or motion sickness which you think may be affected by using the services, you should contact a doctor before using the services.

12. Limitations and exclusions of liability

Nothing in these terms shall exclude or limit your liability or our liability for death or personal injury caused by negligence; for fraud or fraudulent misrepresentation; or under any indemnity in these terms. Subject to this, we shall not be liable in contract, tort (including, without limitation, negligence), for pre-contract or other representations, or otherwise arising out of or in connection with these terms for:

  1. any economic losses (including, without limitation, loss of revenues, profits, contracts, data, business, anticipated savings or cost of substitute services);
  2. any loss of goodwill or reputation; or
  3. any special, indirect or consequential losses,

in any case, whether or not such losses were within either of our contemplations at the date of acceptance of these terms.

Subject to the above, our liability to you in relation to all events or series of connected events occurring under these terms (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to the greater of the total amount of the sums you have paid for the services in the six month period immediately preceding the date of the first event allegedly giving rise to the liability.

Nothing in these terms excludes any statutory rights which may apply to your use of the services which cannot be excluded, restricted or modified by contract.

13. General

These terms and the relationship between you and Brainbow shall be governed by the laws of England without regard to any conflict of law provisions of any jurisdiction. Both you and Brainbow agree to submit to the exclusive jurisdiction of the English courts, except that Brainbow may seek injunctive relief in any jurisdiction in order to enforce its rights under these terms. In addition, you have the option to use the Online Dispute Resolution (ODR) platform which is accessible here - http://ec.europa.eu/consumers/odr/index_en.htm.

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these terms that is caused by any act or event beyond our reasonable control, including failure of public or private telecommunications networks (“Event Outside Our Control”). If an Event Outside Our Control takes place that affects the performance of our obligations under these terms of use:

  1. our obligations under these terms shall be suspended for the duration of the Event Outside Our Control; and
  2. we will use our reasonable endeavours to find a solution by which our obligations under these terms may be performed despite the Event Outside Our Control.

No person other than you and Brainbow shall have any rights under these terms in relation to your use of the services. We may transfer our rights and obligations under these terms to another organisation, but this will not affect your rights or our obligations under these terms. You may only transfer your rights or obligations under these terms if we agree in writing.

Any failure of or delay by Brainbow to exercise or enforce any right or provision of the terms shall not constitute a waiver of this right or provision. If any provision of the terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the terms shall remain in full force and effect.

You agree that these terms represent the entire understanding between you and Brainbow in respect of your relationship with Brainbow. These terms supersede any previous agreements between you and Brainbow including any previous version of these terms.

14. Contact

Questions, comments and requests regarding our terms and conditions are welcomed and should be addressed to Brainbow Limited, 120 Holborn, London, EC1N 2TD, or support@peak.net.