Terms of Service
Brainwaive, LLC., LLC. (“Brainwaive, LLC.,” “we” or “us”) is pleased to provide you access to the ETHAR™ platform, which allows a user (“User” or “you”) to upload, download, and/or publish digital assets (2D/3D models, AR/VR/XR experiences, video and audio files, and images, on the ETHAR™ platform, or embed on third-party websites by means of our proprietary viewer. All elements of the ETHAR™ platform, along with our proprietary viewing technology and software, are referred to herein as the “Services,” and may be modified from time to time at our sole discretion.
Table of Contents
- General Conditions
- Subscriptions and Purchases
- Ownership of Brainwaive, LLC. Content
- User Content
- User Restrictions and Obligations
- Warranty Disclaimers, Limitations of Liability, Indemnity
- Intellectual Property Claims
- Modifying and terminating the Services
- Other Websites and Services
- Applicable law and jurisdiction; Arbitration
1. General Conditions
1.1 Description of Services. Brainwaive, LLC. is pleased to offer free services (“Free Services”) with limited functionality, as well as various tiers of paid services (“Paid Services”) with enhanced functionality.
1.2 Account. An ETHAR™ account is required in order to take full advantage of the Services. The account can be created directly by filling out the appropriate form. You agree to provide only accurate and true information in connection with the creation of your account, and to update your information as necessary so it remains accurate and current. You may not transfer your account to any third party. You are responsible for keeping your account login information confidential and for any and all activities that occur under your account. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your account or other breach of security on the Services. You will have the ability to pick an available username to link to your account. Please note that Brainwaive, LLC. retains the right at any time to deactivate, reallocate or rename your username at its sole discretion. In the event of the deactivation, reallocation or renaming of your username all your User Content and Services shall continue to remain associated with your account, subject to the terms of this Agreement.
1.3 Access. We may, in our sole discretion, refuse to offer the Services to any person or entity. We may, in accordance with this Agreement and Section 8 hereof, terminate your right to use the Services, or any portion of thereof, and block or prevent your future access to and use of the Services or any portion thereof.
1.4 Minors. THE SERVICES ARE NOT INTENDED FOR CHILDREN UNDER 13, and persons under the age of 13 are prohibited from registering with or using the Services. You represent and warrant that you are more than 18 years of age or, if you are above 13 and below 18 years of age, you are an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to abide by and comply with the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement. This provision is void where prohibited by law and the right to access the Services is revoked in such jurisdictions.
2. Subscriptions and Purchases
2.1 Pricing. The pricing of our various Paid Services options is available at LINK. Payment is due upon purchase. Payment is due at the beginning of each subscription period. Brainwaive, LLC. shall email payment invoices to Users upon request. In the event of a pricing change to your Paid Services plan, we will inform you within 60 days before the new prices take effect. If you do not wish to continue your current Paid Services plan with the new prices, you may cancel your Paid Services plan.
2.2. Representations. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE THE PAYPAL ACCOUNT, AND ANY BANK ACCOUNTS OR CREDIT CARD(S) ACCESSED THROUGH THE PAYPAL ACCOUNT, THAT YOU USE TO PAY FOR THE SERVICES. You agree to pay all charges incurred by you or any users of your account at the prices in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases. Verification of information applicable to a purchase may be required prior to our acceptance of any order.
3. Ownership of ETHAR™) Content
3.1 Generally. By using the Services, you will encounter “ETHAR™ Content,” which includes all of the images, text, information, data, audio, video, graphics and other material included on or otherwise made available through the Services, excluding User Content. “User Content” includes all the digital assets (2D/3D models, AR/VR/XR experiences, video and audio files, and images), as well as User comments, uploaded by Users, that make up the Services. Except as otherwise set forth in this Agreement, we do not claim ownership over any User Content.
3.2 Ownership. All ETHAR™ Content is owned by Brainwaive, LLC., Inc. or its licensors, and is protected by U.S. and international copyright laws, trademark laws and/or other proprietary rights and laws. As between you and Brainwaive, LLC., Inc. and its licensors, Brainwaive, LLC., Inc. or its licensors own and retain, solely and exclusively, all rights, title and interest in and to the Services, and all ETHAR™ Content that we or our licensors create and that we make available to you through the Services, including but not limited to any and all copyrights, trademark rights, trade secret rights, patent rights, database rights and other intellectual property and proprietary rights therein. The trademark ETHAR™ and all associated logos and the other trademarks, service marks, logos and trade names displayed on or in connection with the Services are the registered and unregistered trademarks and service marks of Brainwaive, LLC., Inc. or third parties in the United States and/or other countries. Your use of the Services does not grant you any ownership over any ETHAR™ Content, and except for the limited license we grant you under this Agreement, your use of the Services does not grant you any license or permission under any copyright, trademark or other intellectual property rights of Brainwaive, LLC., Inc. or any third party. We reserve all rights not expressly granted to you in this Agreement.
3.3. Service and Content License. We grant you a limited, non-exclusive, non-sublicensable and non-transferable license to use the Services as they are provided to you by us, only as set forth in this Agreement. Except as expressly permitted in this Agreement, you may not reproduce, distribute, adapt, modify, translate, create derivative works from, publish or otherwise use any portion of the Services or ETHAR™ Content for any purpose without express prior written permission from us or the applicable rights holder. Any commercial exploitation of the Services or ETHAR(TM) Content without express prior written permission from us or the applicable rights holder is strictly prohibited.
3.4 Software. All software and software-as-a-service (SAAS) used in connection with the Services (“Software”) is proprietary to us or to third parties, and except as may be required to exercise the foregoing license grant, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or reduction of such software to human-readable form is prohibited. You agree that we may update the Software without notice, at any time and in our sole discretion, and that this Agreement will apply to any updated versions.
4. User Content
During the operation of the Services, Users may upload certain User Content including 2D/3D models, AR/VR/XR experiences, video and audio files, and images. You remain the owner of your User Content at all times, and Brainwaive, LLC. does not claim any ownership rights in your User Content. User Content is otherwise subject to the following provisions. This Agreement applies to all the User Content that you contribute onto the ETHAR™ platform during the term of this Agreement.
4.2 User Content License.
4.2.1 Use by us. By using the Services, you grant Brainwaive, LLC. a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable right and license to use, reproduce, publicly display, distribute and adapt the publicly shared User Content for the purposes of developing, distributing, providing, improving, and promoting the Services, our activities and your publicly shared User Content. You further grant Brainwaive, LLC. the right to use your name and trademarks, if any, in connection with our use of your publicly shared User Content.
4.2.2 Use by others for free. Users may make their User Content available to other users for download for free via one of several Creative Commons licenses. For more information, see https://creativecommons.org/licenses/. The User is solely responsible for choosing the appropriate license, if any, under which the Content is available for download. By downloading User Content made available by other Users, you agree to adhere to the terms of the Creative Commons license that applies at the time of download.
4.2.3 Use by others for a price. You may also elect to make your User Content available to other users for download for a price. If you choose to make your content available to other users for a price you grant us the right to grant other users a nonexclusive, nonsublicensable, and nontransferable, perpetual, worldwide right to use your User Content for the purposes and under the conditions detailed in our user license agreement. For the different types of licenses and details thereof, please see License Agreements. Each such license is subject to payment of a license fee by the other users (whether one-time or subscription based) in accordance with our end user price list and Brainwaive, LLC. is entitled to a commission thereon in accordance with our contributor price list, which we may update from time to time in our sole discretion.
4.2.4 Download API. Users who make their User Content available to other Users under Articles 4.2.2 and 4.2.3 of these Terms acknowledge and accept that their Content (i) may be made available and (ii) can be downloaded from a third party application or website, through the download API operated by Brainwaive, LLC.. For the avoidance of doubt, said Users specifically grant to Brainwaive, LLC. a license over their User Content covering all use related to the development, distribution, provision, improvement and promotion of the download API operated by Brainwaive, LLC..
Users accessing and downloading User Content through the download API operated by Brainwaive, LLC. shall be authenticated and it is expressly agreed that: (i) the use of the download API is governed by these Terms and each User’s plan; and (ii) the authenticated User accessing and downloading the User Content shall be responsible for complying with the terms of the license governing said User Content.
4.3 User Representations. By submitting User Content, you represent and warrant that (i) you own or otherwise control all of the rights to your User Content, (ii) the use of your User Content does not violate this Agreement or the law, and will not violate any rights of or cause injury to any person or entity, (iii) your User Content will not violate the additional content restrictions set forth in Section 5 of this Agreement, and that (iv) to the greatest extent permitted by law, You hereby irrevocably and unconditionally waive any and all moral rights whatsoever, or any rights of a similar nature, in your User Content, for the benefit of or in favor of Brainwaive, LLC., including any right to be associated with your User Content (right of paternity) or any right to restrict or prevent the modification or use of your User Content in any manner whatsoever (right of integrity). To the extent You retain any such moral rights under applicable law, You hereby agree not to assert them against Brainwaive, LLC. or ETHAR™ users in any manner whatsoever.
4.4 User Feedback. We appreciate your feedback and suggestions about our Services, but you agree that any feedback or suggestions submitted to us about the Services are entirely voluntary and that we will be free to use any such feedback or suggestions as we see fit and without any obligation to you.
4.5 Right to Monitor, Moderate or Remove. You agree that you bear all risks associated with your User Content. You are solely responsible for safeguarding your User Content, and Brainwaive, LLC. has no duty to store copies of User Content for future availability to you or any user except as otherwise provided under this Agreement. Brainwaive, LLC. does not permit the infringement of intellectual property rights on the Services, and will remove User Content from the Services if properly notified that such User Content infringes on another’s intellectual property rights. We reserve the right to remove User Content from the Services, in whole or in part, without prior notice, for any reason or for no reason at all. Without limiting our right to terminate a User pursuant to Section 8 of this Agreement, we reserve the right to terminate the account of any User of the Services who has been notified of infringing activity more than twice and/or has had User Content removed from the Service more than twice. We also reserve the right to decide whether User Content is appropriate and complies with this Agreement for violations other than violations of intellectual property law. This shall extend to the right of Brainwaive, LLC. to edit, modify, moderate, re-format, change or otherwise remove all or part of the descriptions, comments and/or annotations that You and/or third parties add and/or make in relation to your User Content, in any manner that We may determine, whenever We deem it appropriate.
5. User Restrictions and Obligations
It is important to us that the Services be used safely, and in accordance with the law, for the enjoyment of all Users. You agree that you will not use the Services to:
- Decompile, disassemble, reverse engineer, copy, transfer, or otherwise use the Services, ETHAR™ Content, and User Content except as permitted by this Agreement;
- Promote any illegal activity, or advocate, promote or assist any unlawful act;
- Transmit any material or content that is pornographic, dehumanizing, threatening, harassing, libelous, hate-oriented, harmful, defamatory, racist, xenophobic, or illegal;
- Transmit any material or content that is inappropriate for families or otherwise suitable only for audiences over the age of 13, except where such content is appropriately labeled as “Restricted” and conforms to the Brainwaive, LLC. Restricted Content Policy;
- Transmit any material or content that attempts to falsely state or otherwise misrepresent your identity or affiliation with a person or entity;
- Transmit material or content that promotes, provides, or relates to instructional information about illegal activities or promotes physical harm or injury against any individual or group;
- Transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- Transmit or encourage the transmission of any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, patent, or right of publicity, or which otherwise constitutes or promotes counterfeit materials or goods;
- Use the services in a manner that (a) is likely to interrupt, suspend, slow down or hinder the continuity of the Services, (b) constitutes an intrusion or attempt to break into the Services or Brainwiave’s computer or networking systems, (c) will divert of the Services’ system resources, (d) may place a disproportionate load on the infrastructure of the Services, and (e) constitutes an attack on security and authentication measures of the Services or Brainwaive, LLC.’s computer or networking systems.
- Intrude into a third party’s computer system, engage in any activity that may damage, control, interfere with or intercept all or part of a third party’s computer system and violate its integrity or security, or otherwise transmit any materials or content that is harmful for third party information systems (including but not limited to viruses, worms, Trojans);
- Otherwise use the Services for purposes other than those for which they were designed.
The User is not permitted to modify the design or alter the appearance of the ETHAR™ viewer (e.g., in embeds or screen captures) other than by using the available embed customization options and the “Viewer API” methods provided by Brainwaive, LLC., and according to the User’s plan). Removing, hiding, or altering the ETHAR™ logo watermark is prohibited to all users, under all plans except Enterprise.
Use of ETHAR™ within advertisements or advertiser-supported content requires the license of an Enterprise account and express consent by Brainwaive, LLC. for which you may contact us here.
You agree to inform Brainwaive, LLC. promptly about any legal complaint, claim or action related to the User Content you have uploaded using the Services.
6. Warranty Disclaimers, Limitations of Liability, Indemnity
DISCLAIMER OF WARRANTIES. Brainwaive, LLC., Inc. undertakes to provide the Services diligently and professionally, and otherwise makes no representations or warranties of any kind regarding the Services or the ETHAR(TM) Content. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. BRAINWAIVE, LLC., INC. EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; (ii) THAT THE SERVICES, WEBSITE AND THE ETHAR(TM) CONTENT WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; (iii) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE SERVICES, WEBSITE OR THE ETHAR(TM) CONTENT; AND (iv) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES, WEBSITE OR THE BRAINWAIVE, LLC. CONTENT. No advice or information obtained by you from Brainwaive, LLC., Inc., or otherwise through the Services, will create any warranty not expressly stated herein.
LIMITATION OF LIABILITY. BRAINWAIVE, LLC.’S MAXIMUM AGGREGATE LIABILITY TO ANY USER WILL BE THE AMOUNT PAID FOR THE PERIOD IN WHICH THE LIABILITY ARISES, ONLY IF THE USER HAS PAID FEES FOR USE OF THE SERVICES. BRAINWAIVE, LLC. WILL NOT OTHERWISE BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICE OR FROM ANY INFORMATION, ETHAR(TM) CONTENT, DESIGNS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Indemnity. You agree to indemnify and hold Brainwaive, LLC. and its affiliates, subsidiaries, owners, directors, officers, employees and agents harmless from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses and costs (including without limitation reasonable attorneys’ fees) assessed or incurred by Brainwaive, LLC. directly or indirectly, with respect to or arising out of: (i) your failure to comply with this Agreement; (ii) your breach of your obligations under this Agreement; (iii) your use of the rights granted hereunder, including without limitation any claims made by any third parties; (iv) your violation of any third party right, including without limitation any intellectual property, right of publicity, or privacy right; and/or (v) any claim that any of your User Content caused damage to a third party.
7. Intellectual Property Claims
Brainwaive, LLC. respects the intellectual property rights of others, and complies with the provisions of the Digital Millennium Copyright Act (DMCA) applicable to Internet service providers (17 U.S.C. § 512, as amended). We respond to clear notices of alleged copyright infringement, and infringing materials posted by Users can be identified and removed pursuant to this complaint procedure.
In the event you believe that any User Content on the Services infringes your copyright, please file a notice of infringement using this form:
Electronic notification is preferred. You can also file a notice with our designated agent, but processing may be slower than using the link above.
Brainwaive, LLC., Inc.
ATTN: Tony Hodgson
To be effective, any notice submitted to our Copyright Agent must comply with the requirements set forth at 17 U.S.C. § 512(c)(3), and must include substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Brainwaive, LLC. will, upon receiving your compliant notice of copyright infringement, contact the User who posted the allegedly infringing User Content concerning the notice of infringement, and expeditiously remove the allegedly infringing User Content. It is our policy to document all notifications of alleged infringement on which we act. A copy of the notification may be sent to one or more third parties who may make it available to the public. Please be advised that it is our policy to terminate the accounts of users that repeatedly violate this Agreement and/or the DMCA Policy.
If you are a User and material that you have uploaded to the Services has been removed or disabled, you may file a counter-notification pursuant to 17 U.S.C. § 512(g). To be effective, the counter-notification must be a written communication sent to the Designated Agent address listed above that includes the following:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which Company may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. § 512(c)(1)(C) or an agent of such person.
If you have a claim related to trademarks, patents, intellectual property, or any other matter other than copyright, please contact us. Please provide detailed information regarding the nature of your complaint, including but not limited to your name and contact information, the subject matter of the complaint, and any additional information that we may require in order to review the matter and take action (or no action) as may be appropriate. Please be advised that we may share the details of your complaint with the User that owns the User Content that is the subject of your complaint, or with appropriate authorities (including law enforcement authorities) if Brainwaive, LLC. in its sole discretion believes that such action is necessary, or if we are obligated to do so by law.
8. Modifying and terminating the Services
8.1 At any time. Brainwaive, LLC. reserves the right to modify or stop offering all or part of the Services at any time, at its own discretion, in which case we will provide you with one (1) month’s notice.
8.2 For cause. We may terminate your user account or right to access all or portions of the Services at any time, without notice, for conduct that we believe violates this Agreement and/or is harmful to other users, to Brainwaive, LLC., to other service or information providers, or to any third parties.
8.3 Survival. After any termination of this Agreement and/or after you otherwise stop using the Services, the following will survive and remain enforceable and in full force and effect: (i) all outstanding obligations between you and us; (ii) all remedies for breach of this Agreement; and (iii) the following sections of this Agreement: 2(a), 2(b), and 2(d) (Ownership and Content); 3 (User Content); 4 (Other Websites and Services); 5 (Warranty Disclaimers, Limitations of Liability, Indemnity); 6 (Intellectual Property Claims); 7 (Applicable Law and Jurisdiction); 8 (Dispute Resolution); 9 (Termination of Service); and 10 (Miscellaneous).
9. Other Websites and Services
10. Applicable law and jurisdiction; Arbitration
10.2 Arbitration. All disputes arising out of or relating to this Agreement or the Services shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect and the further procedures set forth herein. (For information on the AAA and its rules, see www.adr.org.) The arbitration shall be conducted in New York, New York, unless the Arbitrator shall determine that that venue is not reasonably convenient to all parties, in which case the Arbitrator shall determine another venue that is. In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 2 et seq. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and ALL USERS WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to these terms and conditions, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, a User may at his or her option file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. Brainwaive, LLC. does not hereby waive any defense that such jurisdiction may be lacking in the User’s jurisdiction.
Brainwaive, LLC. reserves the right to amend the Agreement at any time by posting a notice on this page, sending an email notification to registered Users, or otherwise notifying Users via the Services. Registered Users will receive notification of forthcoming change 30 days before the Agreement as amended is effective. Any User using the Services after an amendment has become effective accepts the Agreement as amended. A User who does not accept the amended Agreement shall, before it becomes effective, cease use of the Services.
You consent to receive communications from us electronically, and you agree that we may communicate with you by email or by posting notices on the Services. You agree that all agreements, notices, disclosures and other communications that we provide to you, or that you provide to us, electronically satisfy any legal requirement that such communications be in writing. We are not responsible for any automatic filtering that may be applied to any email notices that we send to the email address you have provided.
The Services are operated by Brainwaive, LLC., Inc., a Delaware corporation. General inquiries may be directed to our support team,