General Terms and Conditions
Table of Contents
Brainhero GmbH (hereinafter referred to as “Brainhero”, “we”, “us”) offers registered customers (“customer”, “user”, “you”, “your”) in Austria and Germany the paid use of the app-based neurofeedback therapy Brainhero (“Brainhero”, “product”, “therapy”) for home use, subject to availability. Brainhero is aimed exclusively at children aged 6 – 18 with an autism spectrum disorder (ASD) or attention deficit hyperactivity disorder (ADHD) diagnosis, who are continuously accompanied by adult caregivers during therapy and would like to train their brains in a playful way. Brainhero’s offerings are NOT intended for users with children diagnosed with epilepsy, a severe mental development disorder, or a non-verbal disorder.
These Terms and Conditions (“ToC”) apply to all users of our product. By clicking the appropriate checkbox in the registration process and using our app, you accept these ToC.
1. SCOPE OF CONTRACT AND SERVICES, GENERAL TERMS AND CONDITIONS
1.1 Brainhero and the Homepage (“Website”) are provided by Brainhero GmbH, Fuchsthallergasse 2/10, 1090 Vienna, e-mail: firstname.lastname@example.org, telephone number +43(0)19974294.
1.2 Brainhero offers a way to alleviate and/or treat the symptoms of ASD (= Autism Spectrum Disorder) and ADHD (= Attention Deficit Hyperactivity Disorder). By measuring voltage/activity with an EEG (=electroencephalogram) and visualizing it in an app, children can learn to control their brain activity. The product in no way replaces medical and/or therapeutic advice, diagnosis or recommendation by a doctor and is not a substitute for information from a doctor.
1.3 Neurofeedback therapy for home use includes a training period of 20 hours over a period of 6 months. The effectiveness of Brainhero depends largely on the regularity of the training sessions and the correct use of the device. Due to the high individuality of each child, we cannot guarantee a relevant training success.
1.4 The device is a rental device provided by Brainhero for the duration of the therapy in exchange for a deposit. After the therapy, the device will be returned with the accessories. The device remains the property of Brainhero for the entire duration of the therapy.
1.5 The ToC, as amended from time to time, are accessible on our website and via a link in the app to the website.
1.6 The ToC are stored on our website and via a link in the app to the website and can be printed and saved at any time on our website.
1.7 Contracts can only be concluded on the basis of these ToC. We must expressly agree to any deviating, conflicting, restrictive or supplementary terms and conditions of the customer in order for them to become part of the contract in the individual case. In particular, acts of contract performance by us shall not be deemed to be consent to any terms and conditions that deviate from our ToC.
2. REGISTRATION, INITIAL MEETING AND USER ACCOUNT
2.1 Users can register via a registration form on the website or in the mobile app.
2.2 By registering, you confirm that you are at least 18 years old and legally competent. Furthermore, you confirm that you are proficient in one of the languages in which we offer our product.
2.4 In order to determine whether the application is suitable for a child, registered users can arrange an informational interview (“initial interview”) with Brainheros medical product consultants. The medical device consultants are not physicians. If Brainhero comes to the conclusion whether the use of Brainhero is suitable for the child, we will inform you of this separately and we will activate an order form in the customer portal of the website, through which the loaned device can be ordered.
2.5 In the event of misuse of our services, we are entitled, but not obligated, at our own discretion to immediately block the affected access or to take other appropriate measures.
2.6 The user agrees to provide accurate and complete information, to keep the account information (especially the payment and shipping information) up to date, and to notify Brainhero immediately of any changes. If the user intentionally or grossly negligently provides false information, this may result in immediate exclusion from further use of the program.
2.7 The user is obligated to treat the respective access data (user name and password) confidentially. The user is obliged to inform us immediately if he/she becomes aware of any loss or unauthorized use of the access data. In the event of an incident, we can only check whether the password matches a properly activated user name. However, we are not obligated to perform any further verification. We can only check your profile if you provide us with the e-mail address used for registration. In case of cause, we may block access to the account in question or delete it. In case of negligent violation of this notification obligation, the user is liable for each person who logs into the app with these access data.
3. FORMATION OF THE CONTRACT AND TERMS OF PAYMENT
3.1 If, after the initial consultation, we come to the conclusion that you are suitable for the use of Brainhero, we will activate an order form in the customer portal of the website, which can be used to order the rental device.
3.2 The presentation of our product on the website is not an offer in the legal sense. The offer is made by the customer by sending the order. The customer has the possibility to check his order before submitting his offer and to correct any mistakes. The offer of the customer becomes binding by clicking on the button “order with obligation to pay”. After submitting the offer, the customer can no longer change the order. We will confirm receipt of the offer and – if there is sufficient availability of equipment – accept the order by sending the invoice. As soon as we have received the payment, we will adapt the device to the respective needs of the customer and subsequently ship the order. As soon as the device has been shipped, we will send you a corresponding shipping confirmation by e-mail.
3.3 All listed prices are end-user prices including VAT, packaging and shipping.
3.4 Unless otherwise agreed in writing, the purchase price is due in full and without deductions immediately upon acceptance of the offer, i.e. upon conclusion of the contract and before delivery of the ordered products. Upon conclusion of the contract, the user shall additionally pay a deposit, which shall be refunded after completion of the therapy and receipt of the undamaged equipment. Payments are made according to the selected payment method. An overview of the available payment methods can be found on our website.
3.5 If the debit according to point 3.4 is not possible for reasons in the sphere of the customer or our payment service provider in the case of a credit check in an individual case gives a negative credit report about the customer, we are free to ask the customer to pay in advance within a reasonable time or to withdraw from the contract for cause.
3.6 Upon acceptance of Brainhero’s order, users will receive access to the training app (German and English) including tutorial videos. To use the app, you need a tablet with the following minimum specifications (iOS: 1 GB RAM, 500 MB free memory, Bluetooth version 4.0 or higher; Android: 2 GB RAM, 500 MB free memory, Bluetooth version 4.0 or higher and Android version 5.0 to 11) and Internet access. Users will also receive a (i) mobile electroencephalogram (EEG) device (“Device”), (ii) headband (size may be selected at time of order), (iii) charging cable, (iv) seperator (to release Device from headband if necessary) (collectively, “Accessories”), (v) saline solution, (vi) quick start guide and user manual including warnings, and a (vii) treatment plan.
4. DELIVERY CONDITIONS
4.1 The delivery (posting by us) of the order shall generally take place within two weeks after receipt of payment.
4.2 The choice of the carrier is made by us according to our best judgment, but without guarantee for the choice of the fastest and cheapest shipment.
4.3 Delivery shall be made to the delivery address specified by the customer. Any costs caused by negligent indication of an incorrect delivery address by the customer or by unjustified refusal to accept delivery shall be borne by the customer.
5.1 We are aware that the Brainhero product is not equally suitable for everyone. If there is an understandable, valid reason (e.g. if the child refuses to train), which is communicated to us by the user and evaluated by us, the device can be returned within the time limits specified in Pt. 5.2 after the date of shipment for a full or partial refund.
5.2 Without prejudice to your statutory rights of withdrawal, we will accept the return of Products up to 30 days after the date of shipment and provide a full refund, subject to the conditions set out in Clause 5.1. In addition, we will provide a partial refund of 50% up to 90 days after the date of shipment.
5.3 In order to receive a refund, a photo of the product must be sent to Customer Service prior to return to prove that the product is in good condition prior to return. The photo must have been taken in good lighting conditions so that the condition of the device can be assessed. The device including accessories must be returned in a fully functional condition (unless the reason for the return is a malfunction of the device).
5.4 Refunds will be made only after the condition of the product has been verified by Brainhero. We reserve the right to retain all or part of the deposit paid in case of negligent or intentional damage to the device (or accessories) by the customer.
5.5 The refund or deposit will be made via the payment method used for the original payment. The Customer may specify a different bank account to receive the refund, but must inform Customer Service in advance.
6. RESTRICTIONS OF USE
6.1 The safe and lawful use of Brainhero is of particular concern to us. Therefore, the User is prohibited in particular, but not exclusively, from using the Product and the App to:
(a) advertise or market their own services or publish content that is offensive, harassing, harmful to minors or otherwise unlawful;
(b) promote or support illegal activities or an illegal act;
(c) violate any rights (including rights of privacy and data protection) of others or enter any content that gives rise to civil or criminal liability under applicable law or otherwise conflicts with these ToC, or remove, obscure or alter any legal notices, including but not limited to Brainhero’s intellectual property rights;
(d) decompile, disassemble, reverse engineer, copy, transfer or otherwise exploit the App, Content the Website, the Customer Portal or the Hardware, except as permitted under copyright law;
(e) automatically crawl, scrape, cache or otherwise exploit any content on the App, Website or Customer Portal;
(f) provide any documentation or content to falsify or otherwise misrepresent your identity or affiliation with any person or entity;
(g) use the App in any manner that (i) may interrupt, suspend, slow or impede the continuity of the App, (ii) constitutes an interference or attempted interference with the App or our IT infrastructure, (iii) diverts App system resources, (iv) places a disproportionate load on the App infrastructure, or (v) constitutes an attack on the security and authentication measures of the App or our IT infrastructure;
(h) distribute any part of the App, including but not limited to individual content, in any medium without prior written permission from us or the applicable owner;
(i) otherwise use the EEG Device and the App for purposes other than those for which it is designed; and
(j) provide its access to third parties free of charge or for a fee, in particular to rent, lend, reproduce, resell or otherwise distribute or transfer it.
6.2 In the event of a violation of these ToC or applicable law, we are entitled, at our own discretion, to delete or block the customer’s user account.
7. COPYRIGHT AND INDUSTRIAL PROPERTY RIGHTS
7.1 With the exception of the content provided by the users, all elements of the product, the website and the app, such as, in particular, texts, images, illustrations, as well as the design and structure of the app and the structure and content of the database, are protected by the copyright and industrial property rights of Brainhero and any third parties commissioned by Brainhero. Without our express consent, the user does not acquire any right to reproduce, distribute, rent or lend, make available, broadcast, perform, or present, edit, translate or otherwise exploit the app or individual elements.
8. SECURITY OF THE APP
8.1 We provide our internal network protection with a firewall. We protect our internal network with a multi-level firewall. There is a hardware firewall at all entry points of the applied public networks. Data is stored redundantly, i.e. in multiple locations, so that it is protected against loss, damage or unlawful destruction due to the failure of the IT device.
8.2 Our internal networks are protected from external attacks by multi-level active protection against complex malicious code (e.g. anti-virus protection). External access to the IT systems and databases is operated by us using SSH key identification via an encrypted data connection from any IP address. Our IT tools and software always comply with the market standard.
9. RIGHT OF WITHDRAWAL FOR CONSUMERS
9.1.1 If the customer is a consumer in the sense of the KSchG (AT Law), he has the right to revoke the contract within fourteen days without giving reasons.
9.1.2 The revocation period is fourteen days from the conclusion of the contract.
9.1.3 In order to exercise the right of revocation, the customer must inform Brainhero GmbH, Fuchsthallergasse 2/10, 1090 Vienna, Austria, e-mail address email@example.com, telephone number +43 (0) 1 997 42 94 by means of a clear declaration (e.g. a letter or e-mail sent by post) of his/her decision to revoke this contract. The customer may use the model withdrawal form below for this purpose, which is, however, not mandatory.
9.1.4 In order to comply with the withdrawal period, it is sufficient that the customer sends the notification of exercise of the right of withdrawal before the expiry of the withdrawal period.
9.1.5 The customer has no right of withdrawal in the cases listed in § 18 FAGG. In particular, the customer has no right of withdrawal from contracts for services if Brainhero – on the basis of an express request by the customer to start the therapy prematurely and a confirmation by the consumer of his knowledge of the loss of the right of withdrawal upon complete fulfillment of the contract – has started the therapy before the expiration of the withdrawal period and has then provided it in full.
9.2. CONSEQUENCES OF THE REVOCATION
9.2.1 If the customer revokes this contract, Brainhero shall repay to the customer all payments (including any delivery costs) that Brainhero has received from the customer without undue delay and no later than fourteen days from the day on which Brainhero received notification of the revocation of this contract. For this repayment, Brainhero will use the same means of payment that the customer used in the original transaction, unless otherwise expressly agreed with the customer. Under no circumstances will the customer be charged any fees due to this repayment.
9.2.2 We may refuse repayment until we have received the goods back or until the customer has provided proof that he has returned the goods, whichever is the earlier.
9.2.3 The customer shall return or hand over the goods to Brainhero GmbH, Fuchsthallergasse 2/10, 1090 Vienna, Austria, without undue delay and in any case no later than within fourteen days from the day on which the customer notifies us of the revocation of this contract. The deadline is met if the customer sends the goods before the expiration of the period of fourteen days.
9.2.4 The customer shall bear the direct costs of returning the goods.
9.2.5 The customer must pay for any loss in value of the goods only if it is not due to any necessary measures to check the condition, properties and functioning of the goods.
9.3. SAMPLE CANCELLATION FORM
9.3.1 The customer may use the following form and send it to Brainhero if he wishes to revoke the contract:
To Brainhero GmbH, Fuchsthallergasse 2/10, 1090 Vienna, Austria, e-mail address firstname.lastname@example.org, telephone number +43 (0) 1 997 42 94.
I/we () hereby revoke the contract concluded by me/us () for the provision of the following service (*):
Ordered on ()/received on ():
Name of consumer(s):
Address of consumer(s):
Signature of consumer(s) (only in case of paper communication)
(*) Please delete where inapplicable.
10.1 The statutory warranty provisions shall apply to customers in the event of defects in the goods.
10.2 The customer has to check the delivered product after receipt for completeness and other defects, in particular for intactness of the packaging, and to notify us of any defects by e-mail to email@example.com and briefly describe them. This serves only the faster and more effective processing of any complaints. A violation of this obligation does not lead to a limitation of the legal warranty rights of the consumer.
11. RIGHT OF RETENTION
11.1 The legal right of retention of consumers is not restricted.
12.1 We shall be liable for damages in accordance with the statutory provisions. Liability for damages caused by slight negligence, except in the case of breach of our main contractual obligations is excluded. The limitation of liability shall not apply to damage caused intentionally or by gross negligence, or to damage resulting from injury to life, limb or health, or under the Product Liability Act.
13. INDEMNIFICATION AND HOLD HARMLESS
13.1 The user shall fully indemnify and hold Brainhero harmless from and against all claims, damages, liabilities, costs, losses and expenses arising from (i) the user’s negligent violation of these ToC and (ii) the user’s negligent violation of third party rights, including but not limited to intellectual property rights, personal rights or data protection rights. The user shall bear the costs actually incurred for the purpose of legal prosecution in accordance with the Lawyers’ Fees Act. This shall not apply if the infringement of rights is not attributable to any culpable conduct on the part of the User.
13.2 In the event of a claim by a third party, the user shall inform Brainhero immediately, truthfully and completely of all information available to him/her that is necessary for an examination of the claims and a defense. Any further claims for damages by Brainhero against the user remain unaffected.
14. CUSTOMER SERVICE
14.1 Telephone customer service is available at +43 (0) 19974294 on business days from 9 a.m. – 4 p.m. (CET), unless otherwise specified in the service description.
14.2 Our customer service is also available via e-mail at firstname.lastname@example.org. We will endeavor to process your request as quickly as possible and will generally respond within 48 hours of receipt of your request on our servers on business days.
15. TERM AND TERMINATION
15.1 The contract for the use of the service has a term limited to 20 training hours over a period of 6 months.
15.2 Contracts between Brainhero and the user for certain chargeable services end automatically upon expiration of the term specified for the service.
15.3 The contract may be terminated in writing by either party at any time during the limited term, subject to a notice period of two weeks. The right to premature termination for special cause shall remain unaffected for both parties.
15.4 After expiration of the contract period – thus after 6 months at the latest – the customer is obligated to return the device to Brainhero.
16. DAMAGE TO THE DEVICE
16.1 The customer is obligated to inform Brainhero GmbH immediately of any damage to the device, as well as loss or theft of the device, and to inform Brainhero GmbH of all details in writing, completely and carefully. The written notification by the customer must be made no later than seven days after the damage event. If no notification of damage, loss, or theft is received by Brainhero within this period, Brainhero reserves the right to retain the deposit in full if the customer has acted negligently.
17. RETURNS AND REFUND OF THE DEPOSIT
17.1 After the end of the therapy period or termination, the device must be returned in the original packaging including accessories to our address:
Brainhero GmbH, Fuchsthallergasse 2/10, 1090 Vienna, Austria.
17.2 We will refund the deposit in full or in part, depending on the condition of the device, as soon as we receive the shipment and have checked the condition of the device.
17.3 If you send us a photo of the posting receipt including the shipment number, we will reimburse you for the shipping costs incurred according to the rates of Österreichische Post AG.
18. FINAL PROVISIONS
18.1 The ToC are subject to Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods, with the restriction that mandatory provisions of the law of the country in which the consumer has his habitual residence are not displaced.
18.2 The court with subject-matter jurisdiction in Vienna 1010 shall have exclusive jurisdiction to decide on all disputes in connection with contractual relationships in which no consumer is involved.
Version June 2022