The following definitions apply to these Terms:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the data protection laws and regulations of the National Privacy Commission, and (b) is permitted to use the Services pursuant to the Agreement between Customer and HYBrain.
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data; where the purposes and means of such processing are determined by the Union or Member State law, the controller of the specific criteria for its nomination may be provided for the Union or Member State law.
“Customer Data” means what is defined in the Agreement as “Customer Data” or “Your Data.”
“Data Protection Laws and Regulations” means any law, statute, subordinate legislation, regulation, order, mandatory guidance or code of practice, judgment of a relevant court of law, or directives or requirements of any regulatory body which relates to the protection of individuals with regard to the processing of Personal Data including the Data Privacy Act of 2012.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“HYBrain Talent” refers to a web-based directory that allows Users to post or view information about services for hire and qualifications of the Users.
“Platform” refers to Staff Monitoring Application, Project Management Application (“HYBrain Tasks”), and HYBrain Talent.
“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Processor” means the entity which Processes Personal Data on behalf of the Controller.
“Project Management Application” refers to HYBrain’s web-based project management tool that allows Users to organize, assign, and track progress on tasks.
“Service” refers to all software, mobile apps, websites, and related services provided to you by HYBrain.
“Staff” refers to an individual within a User’s organization who is subject to the Staff Monitoring Application.
“Staff Monitoring Application” refers to HYBrain’s software application that allows Users to track time worked, activities, locations, and other related information for individuals within the User’s organization. The Staff Monitoring Application is one aspect of the Service provided by HYBrain under these terms.
“Sub-processor” means any Processor engaged by HYBrain or a member of the HYBrain Group.
“You,” “Your,” or “User” refers to anyone accessing or subject to the Service, including any Staff member, or user of the Project Management Application or HYBrain Talent.
The Service is licensed for use only under these Terms. HYBrain reserves all rights not expressly granted to You, including title and exclusive ownership of the Service, any and all software or updates thereto and source code for the Service.
Upon registering for the Service, HYBrain gives You the right to install the Service for use by the total number of Users You identify and authorize. The Service may not be used or accessed by (a) individuals who are not named individuals; or (b) any other software or hardware device that does not require a named individual to use or access it. A named individual means an individual identified by You by name who is authorized to use the Service, regardless of how such access occurs or if such individual uses any hardware or software that reduces the apparent number of users who are using the Service, such as by using a terminal service. The Service may not be used or accessed by any other software or hardware device that does not require an individual to use or access it. HYBrain reserves the right at any time to require You to provide a list of the named individual(s).
You may not rent, lease, lend, sell, redistribute or sublease the Service. These Terms will govern any upgrades provided by HYBrain that replace and/or supplement the original Service. You agree to use your best efforts to protect the Service and upgrades from unauthorized use, reproduction, distribution, publication or alteration.
HYBrain provides the HYBrain Talent application to its Users at no charge. HYBrain does not condition a User’s participation in HYBrain Talent on the use or purchase of any other HYBrain products or services (or vice versa). HYBrain does not condition the receipt of any benefit to a HYBrain Talent user upon the use of any other HYBrain product or service.
Installation of the Service and any required modification of the Service to accommodate Your computer system must be performed by You. All updates, upgrades, enhancements and modifications to the Service MUST be performed by HYBrain. Such updates include any changes or improvements to the Service, whether arising out of the Service’s particular configuration for Your use or otherwise. At all times while these Terms are in effect, You shall provide HYBrain with access to Your computer system so that HYBrain may install all updates. Failure to allow HYBrain to install updates or to compensate HYBrain for the installation of updates automatically terminates all warranties for any purpose related to the Service as well as Your license to use the Service.
Provided prior notice of pricing is given to You, HYBrain reserves the right to charge You for use of the Service on a periodic (e.g., weekly or monthly) basis or otherwise. These Terms shall begin upon Your registration for the Services and shall continue until Your use of the Service is terminated by you or by HYBrain. You are responsible for all fees due to HYBrain and any compensation due to any Marketplace Member prior to the termination date.
Upon the termination of these Terms, the Service and all updates may cease to properly function and all warranties, express or implied, regarding the Service shall terminate. Your rights under these terms will automatically terminate without notice from the HYBrain if You fail to comply with any provision of these Terms. Further, HYBrain may terminate the Service for any action taken by You that HYBrain believes in its sole discretion is an inappropriate use of the Service even if not specifically detailed by these Terms, including any use of the Service that is prohibited by federal, state, or local law. Any warranty regarding the Service will automatically terminate without notice if You fail to comply with any provision these Terms. The parties expressly acknowledge and agree that all provisions of these Terms that concern Copyright or other protectable interests of HYBrain shall remain in full force and effect notwithstanding termination of any warranty or use of the Service.
The Service and Platform are proprietary to, and valuable trade secrets of HYBrain. You acknowledge the Service contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including, but not limited to, copyright, trademark, and service marks, and that You will only use such proprietary content, information, or materials for permitted uses under these Terms. The Service is entrusted to You only for the purposes set forth in these Terms. You will not reverse engineer, duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with the Service or any software provided therewith. The parties acknowledge that any violation of this provision will cause irreparable harm to HYBrain. As a consequence, the parties agree that if You fail to abide by these Terms, HYBrain will be entitled to specific performance, including immediate issuance of a temporary restraining order or preliminary injunction enforcing these Terms, and to judgment for damages caused by such breach, and to any other remedies provided by law.
The Service may enable access to the HYBrain Talent and the parties’ websites, as well as the websites of third parties (collectively, the “Websites”). The Websites may display, include, or make available content, data, information, applications or materials from third parties, including Your data, or provide links to additional third-party websites (“Data and Materials”). By using the Service, You acknowledge and agree that HYBrain is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright or trademark compliance, legality, decency, quality or any other aspect of the Websites. HYBrain does not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any data and materials on the Websites. To the extent You choose to access such Websites, You do so at Your own initiative and are responsible for compliance with any applicable laws, including, but not limited to, applicable local laws. HYBrain reserves the right to change, suspend, remove, or disable access to the Websites at any time without notice. In no event will HYBrain be liable for the removal of or disabling of access to any such Websites. HYBrain may also impose limits on the use of or access to certain Websites, in any case and without notice or liability. You agree to use the Websites at Your sole risk and that HYBrain shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable.
We Retain All Rights To Our Service Content, Software and Trademarks: You acknowledge and agree that Service may contain data or other content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by HYBrain, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on Service or Service Content, in whole or in part, except that the foregoing does not apply to your own User Data/Content (as defined below) that you legally upload to Service. In connection with your use of Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of Service or Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying Service or distributed in connection therewith are the property of HYBrain, our affiliates and our partners. You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by HYBrain.
The Service name and logos are trademarks and service marks of HYBrain (collectively the “HYBrain Trademarks”). Other company, product, and service names and logos used and displayed via Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to HYBrain. Nothing in this Terms of Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of HYBrain Trademarks displayed on Service, without our prior written permission in each instance.
We Are Not Responsible For Third Party Material: Under no circumstances will HYBrain be liable in any way for any data or other content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any data or other content, or for any loss or damage of any kind incurred as a result of the use of any such data or other content. HYBrain and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any data or other content that is available via Service. Without limiting the foregoing, HYBrain and its designees will have the right to remove any data or other content that violates these Terms of Service or is deemed by HYBrain, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any data or other content, including any reliance on the accuracy, completeness, or usefulness of such data or other content.
You Retain Ownership Of And Are Responsible For All Your User Data/Content Transmitted Through Service: With respect to the data or other content or other materials you upload through Service or share with other users or recipients (collectively, “User Data/Content”), you represent and warrant that you own all right, title and interest in and to such User Data/Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading or making available any User Data/Content you hereby grant and will grant HYBrain and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Data/Content in connection with the development and operation of Service.
You agree that HYBrain and its affiliated companies have the right to de-identify or aggregate any User Data/Content (the result thereof not being considered User Data/Content hereunder), and will be free at any time to fully utilize and disclose such de-identified or aggregated data for their business purposes.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about Service (“Submissions”), provided by you to HYBrain are non-confidential and HYBrain will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that HYBrain may preserve data or other content and may also disclose data or other content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any data or other content violates the rights of third parties; or (d) protect the rights, property, or personal safety of HYBrain, its users and the public. You understand that the technical processing and transmission of Service, including your data or other content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. HYBrain CANNOT AND DOES NOT WARRANT THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. AS SUCH, YOU SHALL NOT RELY EXCLUSIVELY ON THE SERVICE FOR ANY REASON. THE SERVICE AND ANYTHING RELATED THERETO ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND HYBrain HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE AND ANYTHING RELATED THERETO, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY HYBrain OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
HYBrain SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOU OR ANY THIRD PARTIES CAUSED BY THE SERVICE OR INFORMATION CONTAINED IN THE SERVICE. YOU WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST HYBrain ARISING OUT OF THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICE. YOU SPECIFICALLY WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST HYBrain AS A RESULT OF INCORRECT INFORMATION CONTENT DISPLAYED BY THE SERVICE OR CHANGES TO CONTENT MADE BY YOU. HYBrain SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGE, WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF THE SERVICE OR ANY PERFORMANCE OF THESE TERMS, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, EVEN IF HYBrain HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HYBrain’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO HYBrain FOR THE SERVICE IN THE 365 DAYS IMMEDIATELY PRECEDING THE DATE THAT HYBrain RECEIVES NOTICE OF A CLAIM IN WRITING FROM YOU. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
By registering to use the Service or Platform, or by sending us or emails, faxes, push notifications, or text or voice messages, you are communicating with us electronically. And in doing so, you expressly consent to receive communications from us electronically via email, fax, push notification, or voice or text message, whether pre-recorded or auto-dialed (“Digital Means”). We will communicate with you by the aforementioned Digital Means, or by posting notices on the Services or Platform. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. For the Services and Platform that integrate with a mobile functionality, your carrier’s normal messaging; data and other rates and fees will still apply.
For those HYBrain users located outside the Philippines, you acknowledge and expressly consent to HYBrain’s use of your Personal Data and further acknowledge that HYBrain’s processing of Personal Data is required to perform the Services or use the Platform. Further at times Personal Data will be accessible by individuals who are located worldwide including other geopolitical authorities who have not determined to provide the same level of data protection as in your country, province, territory or geopolitical region, and that such information may be accessed by the courts, law enforcement and national security authorities of such jurisdictions. By providing us with your Personal Data, you are consenting to our use of it in accordance with these Terms, including the transfer of your information across international boundaries to jurisdictions anywhere in the world as permitted by local law.
These Terms do not constitute a grant or an intention or commitment to grant any right, title, or interest in the Service or HYBrain’s trade secrets to You. You may not sell or transfer any portion of the Service to any third party. You shall not identify the Service as coming from any source other than HYBrain. These Terms are exclusive and personal to You. You shall not assign or otherwise transfer any rights or obligations under these Terms.
Choice of Law. Regardless of the place of execution, delivery, performance or any other aspect of these Terms, these Terms and all of the rights of the parties under these Terms shall be governed by, construed under, and enforced in accordance with the procedural and substantive law of the Philippines, to the exclusion of any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of these Terms to the substantive law of another jurisdiction.
Jurisdiction. You consent to personal jurisdiction in any of the state courts sitting in the Philippines, and agree that any suit arising under these Terms shall exclusively be commenced and maintained in such courts.
General Indemnity. You agree to indemnify and hold HYBrain and (as applicable) its related entities, affiliates, and HYBrain’s and their respective officers, directors, agents, and employees, harmless from and against any and all claims, demands, proceedings, losses and damages (actual, special, and consequential) of every kind and nature, known and unknown, including reasonable attorney fees, made by any third party due to or arising out of Your breach of these Terms or Your violation of any law or the rights of any third party.
Attorney Fees and Expenses. In a dispute arising out of or related to these Terms, HYBrain shall have the right to collect reasonable attorney fees and costs and necessary expenditures from You.
Severability. If a court finds any provision of these Terms invalid or unenforceable, the remainder of these Terms shall be interpreted so as best to affect the intent of the parties.
Effect of Waiver. The failure to exercise any right provided in these Terms shall not be a waiver of prior or subsequent rights.
HYBrain welcomes feedback or inquiries about the Service. If You elect to provide any feedback or comments of any nature to HYBrain, all feedback and comments shall be the sole and exclusive property of HYBrain, and HYBrain shall have the right to use such feedback in any manner and for any purpose in its exclusive discretion without remuneration, compensation, or attribution to you. HYBrain is under no obligation, however, to use such feedback.
HYBrain may modify these Terms or any additional terms, and such modification shall be effective and binding on You upon notice by HYBrain via email to the email account provided by You upon registration for the Service. If you do not agree to any modification of these Terms, you should discontinue your use of the Service.
Communications made through the HYBrain’s website or any email or contact links provided thereon shall in no way be deemed to constitute legal notice to HYBrain or any of its officers, employees, agents, or representatives, such as where notice to HYBrain is required by contract, or any federal, state, or local laws, rules, or regulations.
You may provide notice to HYBrain at:
HYBrain Development Corporation
72 Stork Street Brgy. Montevista, Bacolod City
Negros Occidental, Philippines 6100
All Users of HYBrain’s Service must be at least 18 years of age and older than the age of legal majority in Your jurisdiction (if it is over 18). By using the Service you promise that you are over 18 years of age and are a competent legal adult in Your jurisdiction.