Terms of Service

These Terms of Service (the “Terms”) form a binding agreement between you and Lukas Pawliczek, Germany (“Brainer”, “we”, “us” or “our”), whose details appear in the Imprint. By creating an Account, installing the Software or otherwise using the Service, you accept these Terms. If you do not accept these Terms, you must not use the Service.

1. Definitions

1.1 “Account” means the user account you create in order to use the Service.

1.2 “Documentation” means the user documentation we make available for the Software.

1.3 “Service” means the Software, the Sync Service, the Site and the Documentation, collectively.

1.4 “Site” means the website at brainerapp.de.

1.5 “Software” means the Brainer desktop application in object code form, including any updates and upgrades we supply.

1.6 “Sync Service” means the hosted service that synchronises Your Content between your devices and with users you invite.

1.7 “Your Content” means the data, files and materials you create, upload or store using the Service.

2. Licence

2.1 Subject to your compliance with these Terms, we grant you a limited, revocable, non-exclusive, non-transferable, non-sublicensable licence to install and use the Software in object code form on devices you own or control, for your personal or internal business purposes.

2.2 The Software is licensed, not sold. We and our licensors reserve all rights not expressly granted in these Terms. No title to or ownership of the Software is transferred to you.

2.3 The Software is proprietary. Its source code is not published and is not supplied under these Terms.

3. Restrictions

3.1 You must not, and must not permit any third party to:

• (a) copy, modify, adapt, translate or create derivative works of the Software;
• (b) distribute, sell, resell, rent, lease, lend, sublicense, assign or otherwise transfer the Software or any part of it;
• (c) remove, obscure or alter any copyright, trade mark or other proprietary notice;
• (d) reverse engineer, decompile or disassemble the Software, or otherwise attempt to derive its source code, algorithms or underlying structure, except to the extent that this restriction is prohibited by applicable mandatory law;
• (e) circumvent, disable, degrade or interfere with any security feature or technical protection measure of the Service;
• (f) use the Software, or any information derived from it, to develop or market a product that competes with the Service;
• (g) use the Service in violation of any applicable law or in a manner that infringes the rights of any third party.

3.2 Unauthorised use of the Software infringes our intellectual property rights and entitles us to injunctive relief, damages, disclosure and destruction of infringing copies under § 97 of the German Copyright Act (UrhG), together with the costs of enforcement. Damages may be assessed on the basis of a reasonable licence fee or of the infringer’s profits. Infringement of copyright and circumvention of technical protection measures are also criminal offences under §§ 106, 108a and 108b UrhG.

4. Accounts

4.1 You may create an Account only if you have reached the age of majority where you live and can enter into a binding contract. Brainer is not intended for use by anyone who cannot.

4.2 You must supply a valid email address, which we verify by code. You must keep the information in your Account accurate.

4.3 You are responsible for safeguarding your credentials and for all activity occurring under your Account. Accounts are personal and must not be shared.

4.4 You may delete your Account at any time from within the Software. Deletion removes the Account from our systems as described in the Privacy Policy.

5. Your Content

5.1 You retain all right, title and interest in and to Your Content. We claim no ownership of Your Content.

5.2 Your Content is stored on your device. If you have an Account, a copy is also kept on our server so that your work survives a lost device and so that you can continue on another one. You grant us a limited, non-exclusive licence to host, store, reproduce and transmit Your Content for the sole purpose of operating the Sync Service, and — for a space you expressly share — of making Your Content available to the users you have invited. This licence ends when you delete Your Content or your Account.

5.3 Your personal space is never shared and cannot be shared. It carries no invite link, and our server refuses any attempt to invite someone into it, to add a member to it or to join it.

5.4 You are solely responsible for Your Content and represent that you hold all rights necessary to use it as contemplated by these Terms.

6. Acceptable use of the Sync Service

6.1 The Sync Service is provided to synchronise Your Content between your own devices and with users you invite. You must not use it as general-purpose file storage, place unreasonable load on it, or attempt to access data belonging to other users.

6.2 We may suspend or terminate an Account that breaches this Section 6, and will notify you of the reason.

7. Availability and modifications

7.1 The Software keeps working when you are offline; changes are synchronised once a connection is available. We give no service level commitment for the Sync Service, which may be unavailable for maintenance or for reasons beyond our reasonable control.

7.2 We may add to, modify, suspend or discontinue any part of the Service. Where a modification materially and adversely affects you, we will give notice in the Software before it takes effect.

7.3 We may amend these Terms. We will notify you of material amendments in the Software at least thirty (30) days before they take effect. If you do not accept an amendment, you may terminate under Section 8.1; continued use of the Service after the effective date constitutes acceptance.

8. Term and termination

8.1 These Terms apply from your acceptance until terminated. You may terminate at any time by deleting your Account and uninstalling the Software.

8.2 We may suspend or terminate the licence granted in Section 2.1 with immediate effect if you materially breach these Terms, and will state our reasons.

8.3 On termination you must cease all use of the Software and delete all copies in your possession. Sections 3, 5.3, 9, 10, 11 and 12 survive termination.

9. Paid plans

9.1 The Brainer application is free to download and use on your own device. Brainer Plus is a paid subscription that unlocks shared spaces, so that several people can work in the same boards and brainstorms. Current prices are shown on our pricing page and at checkout before you pay. Prices include any applicable VAT.

9.2 Payments are processed by Paddle.com Market Ltd, Judd House, 18–29 Mora Street, London EC1V 8BT, United Kingdom, as the Merchant of Record. Paddle is the seller on your receipt and handles payment, invoicing and tax. Paddle's buyer terms apply to the transaction in addition to these Terms.

9.3 A subscription renews automatically for the same period until cancelled, and we charge at the start of each period. You may cancel at any time; cancellation stops the next payment and Plus keeps working until the end of the period already paid for. After that the Account continues as a free one.

9.4 If a payment fails, we may suspend the Plus features until it succeeds. Your Content is not deleted and your Account stays as it is.

9.5 We may change prices for future periods. We will tell you by email at least 30 days before a change takes effect, and you may cancel before it does. A price already paid for a running period never changes.

9.6 Consumers in the European Union have a 14-day right of withdrawal, and we refund in the cases set out in our Refund Policy, which forms part of these Terms.

10. Warranty

10.1 Where the Service is supplied free of charge, our statutory liability for defects in title and quality on the gratuitous supply of software under §§ 523 and 524 of the German Civil Code (BGB) applies. Where you pay for Brainer Plus, the statutory rights on defects apply in full and nothing in these Terms limits them.

10.2 SUBJECT TO SECTION 10.1 AND TO SECTION 11.1, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, AND WE GIVE NO WARRANTY THAT IT WILL BE UNINTERRUPTED, SECURE OR FREE FROM ERROR.

11. Limitation of liability

11.1 Nothing in these Terms limits or excludes our liability for intent or gross negligence, for injury to life, body or health, under the German Product Liability Act, or where we have given a guarantee.

11.2 In cases of slight negligence we are liable only for breach of a material contractual obligation, being an obligation whose performance is essential to the proper performance of these Terms and on whose observance you may reasonably rely. In such cases our liability is limited to the damage foreseeable and typical for this type of agreement.

11.3 All liability not expressly provided for in Sections 10.1 and 10.2 is excluded.

11.4 You are responsible for maintaining backups of Your Content.

12. General

11.1 Assignment. You must not assign or transfer these Terms without our prior written consent. We may assign these Terms to a successor in connection with a merger, acquisition or sale of assets.

11.2 Notices. We may give notice through the Software, the Site or the email address associated with your Account. You may give notice to us at the address in the Imprint.

11.3 Severability. If any provision of these Terms is held invalid or unenforceable, the remaining provisions remain in full force and effect.

11.4 No waiver. Our failure to enforce any provision of these Terms is not a waiver of that provision.

11.5 Entire agreement. These Terms, together with the Privacy Policy, constitute the entire agreement between you and us in relation to the Service and supersede all prior agreements on that subject.

13. Governing law and jurisdiction

13.1 These Terms are governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods.

13.2 If you are a consumer, the choice of law in Section 13.1 does not deprive you of the protection afforded by the mandatory provisions of the law of your country of habitual residence, and the statutory rules on jurisdiction apply.

13.3 We are not obliged and not willing to participate in dispute resolution proceedings before a consumer arbitration board (§ 36 VSBG).