End User License Agreement
This End User License Agreement (“Agreement”) is a legally binding agreement between you (“you” or “your”) and Mind Mastered, LLC, a Florida limited liability company (“Mind Mastered” or “us” or “our”). This Agreement governs your use of the MIND MASTERED software application and the services provided by that application (whether on-line or via a downloadable application), the Application Content (as defined below), and all related user documentation and materials provided or accessible by you in connection therewith (collectively, the “Application”). The Application is licensed and not sold to you.
BY DOWNLOADING, INSTALLING, USING, OR OTHERWISE ACCESSING THE APPLICATION, YOU REPRESENT, ACKNOWLEDGE, AND AGREE THAT: (A) YOU ARE 18 YEARS OF AGE OR OLDER AND OTHERWISE LEGALLY QUALIFIED TO ENTER INTO A BINDING AGREEMENT; (B) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, OR YOU WILL REVIEW THIS AGREEMENT BEFORE INSTALLING AND USING THE APPLICATION; AND (C) YOU ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO OR ACCEPT THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL, USE, OR OTHERWISE ACCESS THE APPLICATION AND, IF YOU HAVE ALREADY DONE SO, DELETE THE APPLICATION AND CEASE ITS USE IMMEDIATELY.
THIS AGREEMENT CONTAIN LIMITATIONS ON MIND MASTERED’S LIABILITY AND DAMAGES RECOVERABLE BY YOU, WAIVERS OF WARRANTIES AND OF INDIVIDUAL CLASS ACTION AND JURY TRIALS AND THE EXCLUSIVE FORUM AND VENUE FOR DISPUTES IS ARBITRATION WHICH WILL TAKE PLACE IN JACKSONVILLE, DUVAL COUNTY, FLORIDA.
THE APPLICATION AND ITS USE ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, OR FOR ANY OTHER THERAPEUTIC PURPOSES. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL OR HEALTH CARE CONDITION. RELIANCE ON ANY INFORMATION, MENTAL TRAINING, SELF-HYPNOSIS, OR HYPNOSIS GUIDANCE PROVIDED IN OR VIA THE APPLICATION IS SOLELY AT YOUR OWN RISK. YOU ACCEPT FULL RESPONSIBILITY FOR YOUR OWN ACTIONS AND DECISIONS (WHETHER FINANCIAL, HEALTH-RELATED, SPORTS-RELATED, OR OTHER) THAT MAY ARISE IN CONNECTION WITH USE OF THE APPLICATION.
If you have any questions about this Agreement or the Application, you may contact us at:
Mind Mastered, LLC
86300 Hot Shot Trail
Yulee, Florida 32097
- License Grant. Subject to the terms and conditions of this Agreement, Mind Mastered grants solely to you a limited, revocable, personal, non-exclusive, and non-transferable license (“License”) to:
- download, install, and use the Application for your own personal, non-commercial use on a single electronic device owned or controlled by you (“Device”) strictly in accordance with the Application’s documentation; and
- Select, arrange, order, create playlists, and listen to the Application’s audio content, but solely for your own personal, individual, and private use and only by playing such content via the Application.
You shall not, and the License does not include any right to use the Application or Application Content for any commercial or professional uses or in connection with your performance of any services or professional services for any third party, and the Application is provided and the License is granted solely for use in connection with your own personal and private enjoyment. Except for the License expressly granted to you above in this section, no other rights, whether express or implied, are granted to you in or to the Application or the Application Content, all of which are reserved to and retained by Mind Mastered. You acknowledge and agree that the Application is provided under license, and not sold, to you and you do not acquire any ownership interest in the Application, any Application Content, or any Third-Party Materials under this Agreement.
- Application Content. The Application includes features, functionality, audio recordings, and other content that permits you to organize, create, order, select, and prepare custom audio files, recordings, and playlists for your use in accordance with the License, and may also include and provide you with access to information, data, images, videos, photographs, artwork or other content (collectively, the “Application Content”). The Application Content is included within the definition of the term “Application”). The Application Content contains the copyrighted or copyrightable and proprietary property of Mind Mastered or third parties. You may only use the Application Content solely for the uses expressly authorized by the License. You acknowledge and agree that Mind Mastered owns all ownership, rights, title, and interest in and to the Application and the Application Content.
- Compensation. Mind Mastered may charge a one-time, monthly, annual, or recurring fee for the License and use of the Application, which may vary depending upon the features and Application Content (the “Fee”). You shall be responsible for timely payment of the Fee, and failure to make timely payment may result in suspension or termination of your access to and use of the Application and Application Content and/or termination of this Agreement. Except as otherwise expressly set forth in this Agreement, all payments are non-refundable.
- Use Restrictions. You shall not and shall not attempt to: (a) gain, receive, secure, access, use, or otherwise exceed or circumvent the limited rights granted to you under the License including, without limitation, attempting to gain or receive root, developer, unrestricted, “super user” or any other type of administrative, supervisory or high level access, or restricted access to the Application or Application Content or any type of access not expressly granted to you and authorized by Mind Mastered, or to extract, edit, record, copy or otherwise use, play, distribute, or perform the Application Content other than through the Application as expressly permitted by the License; (b) perform any Updates or any patches, updates, corrections, bug fixes or any other alterations, modifications, changes or adjustments to the Application; (c) modify, translate, adapt, copy or otherwise create derivative works or improvements, whether or not patentable, of the Application or Application Content; (d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; (e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application or Application Content; (f) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application or Application Content, or any features, derivatives or functionality of the Application or Application Content, to any third party for any reason, including by making the Application or Application Content available on a network where it is capable of being accessed by more than one device at any time; (g) remove, disable, circumvent, or otherwise create or implement any workaround to any copyright protection, rights management, or security features in or protecting the Application or Application Content; (h) use the Application in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments; (i) publicly perform or publicly display the Application or Application Content; or (j) otherwise use the Application or Application Content in any way or manner not expressly authorized in this Agreement and by the License. Any breach or violation of any of the foregoing shall constitute a material breach of this Agreement. You are liable and responsible for all acts and usage of the Application and Application Content made by you, or by any third party using your Device.
- Mind Mastered Access. At all times during the term of this Agreement, Mind Mastered shall have unrestricted, continuous and uninterrupted remote access via the Internet to the Application. Once downloaded, installed, or otherwise obtained, you shall not disconnect, disable, suspend or otherwise interfere with Mind Mastered’s access and use of the Application. Mind Mastered shall have the right at all times during the term of this Agreement to remotely access the Application and may upload, download, monitor, retrieve data, information and other content on the Application in connection with Mind Mastered’s rights and obligations under this Agreement, including performing Service Analyses, delivering or installing Updates, providing maintenance, repairs and updates, monitoring your use of the Application, monitoring your compliance with this Agreement, and performing such other tasks as the Mind Mastered deems appropriate. Mind Mastered may: (a) compile statistical and other information related to the performance, operation and use of the Application and information and data input, output and processed by the Application and all transactions; and (b) use any and all such information and data collected from the Application in aggregated form for commercial purposes, security and operations management, to create statistical analyses, for research and development purposes, and selling and disclosing to third parties specific and/or aggregated data, information and reports (clauses (a) and (b) are collectively referred to as “Service Analyses”). Mind Mastered may make Service Analyses publicly available. Mind Mastered retains all intellectual property rights in Service Analyses.
- Your Content.
- The Application may allow you to submit certain content, posts, and uploads including data, information, applications, and other products, services, and/or materials (“Your Content”). Your Content does not include any of the Application Content, including your selection, order and creation of custom audio recordings, files, or playlists, which shall at all times remain the sole and exclusive property of Mind Mastered.
- You represent, warrant, acknowledge, and agree that Your Content will not: (i) contain vulgar, profane, abusive, hateful, or sexually explicit language, epithets or slurs, statements or comments in poor taste; (ii) inflammatory attacks of a personal, sexual, racial or religious nature, or expressions of bigotry, racism, discrimination or hate, or be unreasonably harmful or offensive to any individual or community; (iii) be defamatory, threatening, disparaging, false, misleading, deceptive, fraudulent, inaccurate, unfair, or contain any actionable statement, or tend to mislead or reflect unfairly on any other person, business or entity; (iv) contain gross exaggerations or unsubstantiated claims; (v) violate the privacy rights or right of publicity of any third party; (vi) unfairly interfere with any third party’s uninterrupted use and enjoyment of the Application; (vii) advertise, market, promote or offer to trade or sell any goods or services in any manner without the express authorization of Mind Mastered; (viii) contain any of your trade secrets, confidential or proprietary information or infringe, misappropriate or otherwise violate any copyright, trade secret, trademark, service mark or other intellectual property rights of any third party; (ix) constitute, promote or encourage illegal acts, the violation of any laws or the rights of any individual or entity, or the violation of any local, state, national or international law, rule, guideline or regulation, or otherwise create actual or threatened civil or criminal liability; (x) disclose any personal identifying information of any individual, adult or minor; (xi) contain viruses or other harmful, disruptive or destructive files; (xii) link to any commercial or other websites; (xiii) contain any content that is unlawful or inappropriate as determined by Mind Mastered in its sole and absolute discretion; or (xiv) that otherwise violates this Agreement.
- You represent and warrant that:
- You are the sole author and/or owner of Your Content and the owner of all copyright and other intellectual property rights therein;
- Your Content is not protected by copyright law, and/or
- You have express written permission from the copyright and other intellectual property rights owner to upload, submit and use Your Content in connection with the Application; and you have the right to grant Mind Mastered the license set forth below, and your use of the Application and Your Content does not and will not violate this Agreement or any other agreement applicable to the Application or any agreements you entered into between you and any third party.
- You grant Mind Mastered, its affiliates, and related entities a royalty-free, perpetual, transferrable, irrevocable, non-exclusive, world-wide right and license to use, copy, modify, create derivative works, publicly display, store, publish, transmit, perform, distribute, and reproduce Your Content in any form, media, software or technology of any kind now existing or developed in the future. The license granted by you to Mind Mastered in the preceding sentence also includes the right for Mind Mastered to: (i) include Your Content in a searchable format that may be accessed by users of the Application; (ii) incorporate Your Content into the Application and/or into the Application Content; (iii) to use Your Content for commercial purposes without any obligation of accounting or sharing proceeds, profits or revenues with you; and (iv) freely use any facts, ideas, concepts, know-how or techniques contained in Your Content or communication you send to Mind Mastered for any purpose whatsoever, including but not limited to, developing, promoting and/or marketing products and services and for commercial and resale purposes. You grant all rights set forth above in this section in consideration of your use of the Application without compensation of any sort to you.
- Mind Mastered does not endorse Your Content, the Application Content, or Third-Party Materials, and does not necessarily represent the views of Mind Mastered or their subsidiaries and affiliates, agents, officers or directors. You acknowledge and agree that Mind Mastered does not control Your Content and/or Third-Party Materials, and disclaims any responsibility for Your Content and/or Third-Party Materials. Mind Mastered specifically disclaims any duty, obligation, or responsibility, to review, screen, refuse to post, remove, or edit Your Content and/or Third-Party Materials. In addition, Mind Mastered does not represent or warrant that any Application Content or Third-Party Materials is accurate, complete, reliable, current or error-free. Mind Mastered does not assume any responsibility or liability for Your Content, Application Content or Third-Party Materials.
- Mind Mastered reserves the right (but disclaims any duty, obligation or responsibility) to review, screen, refuse to post, remove in their entirety, or edit (at any time and without prior notice) Your Content and/or Third-Party Materials.
- Third-Party Materials. The Application may display, include, or make available third-party information, data, applications, recordings, playlists, audio files, products, services, materials, links to third-party websites or services, and third-party advertising and marketing (collectively, “Third-Party Materials”). Third-Party Materials may be available to you and/or other users, and such third parties may or may not be users of the Application You acknowledge and agree that Mind Mastered is not responsible for Third-Party Materials including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Mind Mastered does not assume and will not have any liability or responsibility to you or any other person or entity for Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions. Mind Mastered reserves the right, but expressly disclaims any duty, obligation or responsibility to, review, screen, refuse to post, remove in their entirety, or edit Third-Party Materials.
- Updates. Mind Mastered may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Mind Mastered has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Device settings, when your Device is connected to the Internet: (a) the Application will automatically download and install all available Updates; (b) you may receive notice of or be prompted to download and install available Updates; or (c) Mind Mastered may deliver Updates through another method, in its sole and absolute discretion. You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
- Interruption of Use. The Application may be inaccessible or unavailable, in whole or in part, for various reasons including, without limitation (collectively, “Downtime”): (a) equipment, network, software and hardware malfunctions; (b) maintenance and repairs, and servicing, upgrading, and testing of the Application and network components; (c) a Force Majeure; or (d) downtime caused by reasons beyond Mind Mastered’s control including, without limitation, actual or threatened security concerns, Internet or connectivity failures, failure or downtime of third-party software, hardware, networks and services, delays, or failures. Mind Mastered shall not be liable for Downtime, and Downtime shall not constitute a breach of this Agreement.
- Disablement. Notwithstanding any provision of this Agreement to the contrary, Mind Mastered shall have, among its other rights and remedies, the right, without any liability to you, to immediately temporarily or permanently disable, suspend or terminate your access to and/or use of the Application, in whole or in part, with or without notice in the event that: (a) your access or use of the Application interrupts or interferes with the operation of the Application in any manner or creates an actual or threatened security risk; (b) you default on any obligation under this Agreement, including, without limitation, the obligation to pay fees or any amounts due hereunder; and/or (c) upon the termination, cancellation or expiration of this Agreement for any reason whatsoever.
- Term and Termination. The term of this Agreement commences upon your acceptance of this Agreement as set forth above and will continue in effect until terminated by you or Mind Mastered as set forth in this section. You may terminate this Agreement at any time by deleting or uninstalling the Application and ceasing its use. Mind Mastered may terminate this Agreement at any time and for any reason without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. Upon the termination, cancellation or expiration of this Agreement for any reason: (a) the License is immediately and automatically revoked; (b) you will immediately cease all use of the Application and delete and uninstall the Application from your Device. Termination will not limit any of Mind Mastered’s rights or remedies at law or in equity.
- Confidentiality, Non-Use and Non-Disclosure. You acknowledge and agree that the Application, the Application Content and all Third-Party Materials (collectively, “Confidential Information”) are confidential, commercially sensitive, proprietary, and non-public and contain trade secrets. You will maintain the Confidential Information in strict confidence and will not disclose to anyone any of the Confidential Information, and will only use the Confidential Information as expressly permitted by the License. Upon termination, cancellation or expiration of this Agreement for any reason whatsoever, you will immediately delete all Confidential Information that is in your possession, custody or control and will not retain any copies, whether physical or electronic.
- NO COMMERCIAL OR PROFESSIONAL USE OR RELIANCE ON THE APPLICATION OR ITS INFORMATION, DATA OR CONTENT
- THE APPLICATION, APPLICATION CONTENT AND ANY THIRD-PARTY MATERIALS ARE PROVIDED SOLELY FOR YOUR PERSONAL, NON-COMMERCIAL AND NON-PROFESSIONAL INFORMATIONAL USE ONLY FOR YOUR CONVENIENCE. YOU UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO VERIFY ANY INFORMATION PROVIDED ON OR THROUGH THE APPLICATION OR THE APPLICATION CONTENT OR ANY THIRD-PARTY MATERIALS. MIND MASTERED DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATION, THE APPLICATION CONTENT, OR ANY THIRD-PARTY MATERIALS, OR AS TO THE RELIABILITY, ACCURACY OR CURRENCY OF ANY SUCH INFORMATION, DATA OR CONTENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- ADDITIONALLY AND WITHOUT DEROGATING FROM THE ABOVE SUBSECTIONS, MIND MASTERED DISCLAIMS ANY WARRANTIES RELATING TO THE ACCURACY OF THE APPLICATION, APPLICATION CONTENT AND THIRD-PARTY MATERIALS AND ANY OPINIONS, ADVICE, RECOMMENDATIONS OR DIRECTIONS OR INSTRUCTIONS THAT MAY BE PROVIDED OR PRESENTED TO YOU IN CONNECTION THEREWITH. FOR INSTANCE, ANY ADVICE, RECOMMENDATIONS OR SUGGESTIONS PROVIDED TO YOU VIA THE APPLICATION, THE APPLICATION CONTENT OR ANY THIRD-PARTY MATERIALS DO NOT CONSTITUTE PROFESSIONAL, MEDICAL, OR COMPETENT ADVICE OR A DIAGNOSIS, THERAPY OR TREATMENT, AND YOUR USE OF THE APPLICATION AND APPLICATION CONTENT DO NOT CONSTITUTE A FORMAL OR INFORMAL ENGAGEMENT, HIRING FOR ANY PROFESSIONAL, MEDICAL OR THERAPEUTIC TREATMENT, THERAPY, OR SERVICES OR ADVICE AND SHOULD NOT BE USED OR RELIED UPON FOR ANY SUCH PURPOSES. YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR RESPONSIBILITY TO INDEPENDENTLY SEEK PROFESSIONAL, MEDICAL, THERAPEUTIC, AND COMPETENT ADVICE AND TREATMENT INDEPENDENT AND APART FROM THE APPLICATION, AND ANY INFORMATION, ADVICE OR OPINIONS PROVIDED TO YOU MAY BE INACCURATE, FAULTY, INCOMPETENT, OR CONTAIN ERRORS OR OMISSIONS AND SHALL NOT BE RELIED UPON OR USED BY YOU FOR ANY PURPOSES OR APPLICATIONS.
- YOU AGREE AND ACKNOWLEDGE THAT: (I) YOU ASSUME FULL, EXCLUSIVE AND SOLE RESPONSIBILITY FOR THE USE OF AND RELIANCE ON THE APPLICATION, ANY APPLICATION CONTENT OR THIRD-PARTY MATERIALS AND SHOULD YOU USE OR RELY ON ANY OF THE FOREGOING, YOU DO SO ENTIRELY AT YOUR OWN RISK; (II) THE APPLICATION, APPLICATION CONTENT AND THIRD-PARTY MATERIALS ARE NOT INTENDED TO REPLACE OR SUBSTITUTE FOR PROFESSIONAL ADVICE WHICH YOU SHOULD ALWAYS OBTAIN AND FOLLOW WITHOUT RELIANCE ON THE APPLICATION, APPLICATION CONTENT OR THIRD-PARTY MATERIALS; AND (III) IT IS YOUR RESPONSIBILITY TO COMPLY WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS WHILE USING THE APPLICATION OR ANY OF THE APPLICATION CONTENT OR THIRD-PARTY MATERIALS.
- NO WARRANTIES. MIND MASTERED PROVIDES THE APPLICATION AND APPLICATION CONTENT AND THIRD-PARTY MATERIALS (IF ANY) FOR USE ON AN “AS IS”, “ALL FAULTS”, AND “AS AVAILABLE” BASIS. THEY CANNOT BE CUSTOMIZED TO FULFILL YOUR NEEDS. MIND MASTERED HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE APPLICATION AND ITS APPLICATION CONTENT AND THIRD-PARTY MATERIALS (IF ANY), INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, FEATURES, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY OR ACCURACY. NEITHER MIND MASTERED, ITS AFFILIATED OR RELATED ENTITIES, NOR ANY PERSON INVOLVED IN THE CREATION, PRODUCTION, AND DISTRIBUTION OF THE APPLICATION WARRANT THAT THE APPLICATION’S FUNCTIONALITY OR APPLICATION CONTENT OR ANY THIRD-PARTY MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ERRORS OR DEFECTS WILL BE CORRECTED, OR THAT THEY WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THEY ARE SAFE, SECURED FROM UNAUTHORIZED ACCESS TO YOUR COMPUTERS, YOUR DEVICES, OR IMMUNE FROM DAMAGES, FREE OF MALFUNCTIONS, BUGS OR FAILURES, INCLUDING, BUT NOT LIMITED TO, HARDWARE FAILURES, APPLICATION AND SOFTWARE FAILURES AND COMMUNICATION FAILURES, ORIGINATING EITHER WITH MIND MASTERED OR ANY OF ITS PROVIDERS OR ANY THIRD PARTY.
- LIMITATION OF LIABILITY AND DAMAGES
- NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, MIND MASTERED AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES, SUB-CONTRACTORS, AFFILIATES, REPESENTATIVES AND AGENTS AND EACH OF THEIR SUCCESSORS AND ASSIGNS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACTUAL, OR IN ANY OTHER FORM OF LIABILITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE APPLICATION, THE APPLICATION CONTENT, THIRD-PARTY MATERIALS OR THE USE OF, OR THE INABILITY TO USE ANY OF THE FOREGOING, OR FROM ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE APPLICATION, OR FROM ANY FAULT, OR ERROR MADE BY MIND MASTERED’S STAFF OR ANYONE ACTING ON ITS BEHALF, OR FROM YOUR RELIANCE ON THE APPLICATION CONTENT OR THIRD-PARTY MATERIALS, INCLUDING, WITHOUT LIMITATION, CONTENT ORIGINATING FROM THIRD PARTIES, OR FROM ANY COMMUNICATION WITH THE APPLICATION, OR WITH OTHER USERS ON OR THROUGH THE APPLICATION, OR FROM ANY DENIAL OR CANCELLATION OF YOUR USER ACCOUNT OR USE OF THE APPLICATION, OR FROM RETENTION, DELETION, DISCLOSURE AND ANY OTHER USE OR LOSS OF YOUR CONTENT ON THE APPLICATION.
- NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, YOU ACKNOWLEDGE AND AGREE THAT THE TOTAL, AGGREGATE AND COMPLETE LIABILITY OF MIND MASTERED AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES, SUB-CONTRACTORS, AFFILIATES, REPRESENTATIVES AND AGENTS AND EACH OF THEIR SUCCESSORS AND ASSIGNS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE APPLICATION, THE APPLICATION CONTENT AND ANY THIRD-PARTY MATERIALS WILL NOT, UNDER ANY CIRCUMSTANCES, EXCEED THE GREATER OF: (I) THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU TO MIND MASTERED FOR YOUR USE OF THE APPLICATION (IF ANY) DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY; AND (II) TEN DOLLARS AND 00/100 ($10.00).
- THE LIMITATIONS SET FORTH IN SUBSECTIONS (A) AND (B) ABOVE OF THIS SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL APPLY EVEN IF MIND MASTERED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES. IN SUCH JURISDICTIONS, MIND MASTERED’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- Indemnification. You shall indemnify, defend, and hold harmless Mind Mastered and its officers, directors, managers, employees, contractors, representatives, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, and expenses of whatever kind, including attorneys’ fees, arising out of or relating to: (a) your use or misuse of the Application; (b) your breach of this Agreement; and/or (c) Your Content.
- Export Regulation. The Application may be subject to United States of America export control laws, including the Export Control Reform Act and its associated regulations. Use of the Application is not permissible in any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) that you are not listed on any U.S. Government list of prohibited or restricted parties. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the United States of America. You are solely responsible for such compliance.
- Governing Law. This Agreement will be governed and interpreted pursuant to the laws of the State of Florida, United States of America, notwithstanding any principles of conflicts of law. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The parties hereto agree that this Agreement shall not be governed by the Uniform Computer Information Transactions Act (“UCITA”) should UCITA or any similar legislation be in force or later enacted in any jurisdiction governing this Agreement.
- No Relationship. This Agreement and your use of the Application, including the submission of Your Content and use of the Application Content and Third-Party Materials, do not, and shall not be construed as creating any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship in any way and of any kind between the parties hereto. Your use of the Application and its Application Content and any Third-Party Materials is intended for your personal and private enjoyment and benefit.
- Dispute Resolution. You and Mind Mastered agree that this Agreement involves and impacts interstate commerce. Mind Mastered and you knowingly, voluntarily and irrevocably agree that any dispute, controversy or claim arising out of or relating to the Application, the Application Content, or this Agreement, or this Agreement’s negotiation, performance, execution or breach shall be resolved EXCLUSIVELY by BINDING ARBITRATION by a single arbitrator at a location solely within Duval County, Jacksonville, Florida, under the applicable rules of the American Arbitration Association, which arbitration shall be governed by and enforceable under the Federal Arbitration Act (9 U.S.C. §§ 1-16), and judgment on the award may be entered by any court having jurisdiction thereof. The parties acknowledge and agree that any dispute arising out of or relating to the enforceability or scope of this agreement to arbitrate shall be decided by the arbitrator. All arbitration proceedings shall be conducted and maintained in strict confidence. The parties’ mutual promises contained herein, including to arbitrate certain disagreements, rather than litigate them before courts or other bodies, provide consideration for each other for this entire clause. Each party shall be responsible for its own attorneys’ fees, costs and expenses in connection with such arbitration and any dispute.
- NO CLASS ACTIONS AND WAIVER OF JURY TRIAL. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE APPLICATION FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND MIND MASTERED ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, COUNTERCLAIM OR CROSS-CLAIM BROUGHT BY MIND MASTERED OR YOU, AND ARE ALSO WAIVING THE RIGHT TO PARTICIPATE IN OR BE REPRESENTED IN ANY CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
- Cooperation with Law Enforcement. Mind Mastered reserves the right to fully cooperate with any law enforcement or duly authorized regulatory authorities or court order requesting or directing Mind Mastered to disclose any content, data, information, the identity of anyone posting content or using the Application or publishing or otherwise making available any materials on the Application whenever occurring. BY ACCEPTING THIS AGREEMENT, YOU WAIVE, RELEASE AND HOLD MIND MASTERED AND MIND MASTERED’S AGENTS HARMLESS FROM AND AGAINST ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY MIND MASTERED DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER MIND MASTERED OR LAW ENFORCEMENT OR DULY AUTHORIZED REGULATORY AUTHORITIES.
- Force Majeure. Mind Mastered shall not be liable in damages or in breach of this Agreement for any delay or default in performing hereunder if such delay or default is caused by any act of God, flood, fire, storm, strike, lockout, war, riot, insurrection or any other cause beyond the reasonable control of the party whose performance is affected (a “Force Majeure”) to the extent the same directly prevents or delays the performance of such party’s obligations hereunder; provided that, no such condition shall excuse or justify any delay in a party’s performance of its payment obligations hereunder.
- Entire Agreement and Amendments. This Agreement embodies the entire understanding of the parties hereto on the subject matter hereof and supersedes any previous agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof. The parties expressly declare and understand that no promises, inducements, consideration or agreements not herein expressed have been made to them. This Agreement may not be altered, amended, modified, repealed, restated or supplemented except pursuant to a written document signed by each party.
- Interpretation. The use in this Agreement of the word “including” will mean “including, without limitation.” The words “hereby,” “herein,” “hereinafter,” “hereof,” “hereto,” “hereunder,” and other words of similar import refer to this Agreement as a whole, as the same may be altered, amended, modified, repealed, restated and/or supplemented in accordance with the provisions contained in this Agreement, and not to any particular article, clause, paragraph section, subparagraph or subsection contained in this Agreement. All references to articles, clauses, paragraphs, sections, subparagraphs, and subsections will mean the articles, clauses, paragraphs, sections, subparagraphs and subsections contained in this Agreement, except as otherwise expressly provided in this Agreement. The title of and the article, section and paragraph headings contained in this Agreement are for convenience of reference only and will not affect or govern the interpretation of any of the provisions contained in this Agreement. The use in this Agreement of the singular form of a definition or term also will denote the plural forms of such definition or term, and vice-versa, as in each case the context may require. Where specific language is used to clarify by example a general statement contained in this Agreement, such specific language will not be deemed to limit, modify or restrict in any manner the construction of the general statement to which it relates. This Agreement has been prepared in the English language only, which governs this Agreement and controls the construction and interpretation of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation and construction of this Agreement and this Agreement shall be construed as having been jointly drafted by the parties. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
- Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of this Agreement or the application of any provision to any party or circumstance shall be prohibited by or invalid under applicable law, such provision shall be reduced to such scope as is reasonable and enforceable if possible. Otherwise, such provision shall be severed from this Agreement and ineffective to the extent of such prohibition or invalidity without it invalidating the remainder of the provisions of this Agreement or the application of the provision to the other parties or other circumstances.
- Waiver. The failure or delay of any party in exercising any of its rights hereunder, including any rights with respect to a breach or default by the other party, shall in no way operate as a waiver of such rights or prevent the assertion of such rights with respect to any later breach or default by the other party. No party shall be deemed to have waived any rights under this Agreement by any action or inaction unless an express waiver is set forth in writing. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach.
- Assignment and Binding Effect. This Agreement shall be binding upon the parties and each of their respective successors and assigns. This Agreement is personal to you and may not be assigned or transferred by you, in whole or in part, whether by agreement, merger, sale, change of ownership, equity or control, by operation of law or otherwise. Any attempted assignment by you shall be void and of no force or effect. There are no third-party beneficiaries to this Agreement, whether express or intended.
- Notice. All notices, requests, demands, or other hereunder shall be in writing and shall be deemed given only if delivered personally or sent via overnight delivery to the parties’ mailing address. Additionally, Mind Mastered may deliver notice using electronic means available as a function or feature of the Application, and delivery of any notices by Mind Mastered to you via the Application shall be deemed received upon your opening and use of the Application.
- Survival. The obligation of confidentiality and indemnity, and all other obligations which by their nature are intended to survive shall survive the termination, cancellation or expiration of this Agreement.
- Additional Terms that May Apply to You. If you are downloading the Application from the Apple, Inc. (“Apple”) app store or using the Application on a Device that is an Apple branded product or running Apple’s operating system the following additional terms and conditions apply to you and this Agreement:
Apple is not a party to this Agreement and has no obligation to provide or furnish any maintenance or support services with respect to the Application. You must comply with all applicable third-party terms of agreement when using the Application. In the event of any failure of the Application to conform to any applicable warranty expressly provided to you in this Agreement or under applicable law, if any, you may notify Apple, and Apple may refund the purchase price for the Application to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be your sole responsibility. Apple is not responsible for addressing any claims relating to the Application or your possession or use of the Application including, but not limited to: (a) product liability claims; (b) any claim that the Application fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Application or your possession and use of the Application infringes a third party’s intellectual property rights. If you have any questions, complaints or claims with respect to the Application, you should direct them to Mind Mastered’s contact information set forth above. Notwithstanding any provision of this Agreement to the contrary, Apple and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and Apple has the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
If you are not downloading the Application from the Apple app store or using the Application on a Device that is an Apple branded product or running Apple’s operating system, then this section and the foregoing additional terms and conditions do not apply to you and are of no force or effect.