1. Introduction
Welcome! WalkMyMind, Inc. (“us,” “we,” “our,” or “the company”) makes available for download 20 to 30 minute recordings (“WalkCasts”) through our platform (the “Platform”), subject to the terms and conditions set forth in this Terms and Conditions of Use Agreement (this “Agreement”).
By accessing, using, or downloading any of the WalkCasts, you agree, for yourself and for any third person(s) whose access, use or download of the WalkCasts is enabled by your entry into this Agreement, by this Agreement and our Privacy Policy.
You are strongly encouraged to read and fully understand this Agreement and its terms and conditions.
2. Eligibility
You must be at least 18 years of age to access, use or download WalkCasts. By accessing, using or downloading any of the WalkCasts, you represent and warrant that you are at least 18 years of age and have reviewed and consent to this Agreement.
3. Fitness
While the WalkCasts do not require a special level of fitness it is your responsibility to ensure that you possess, a reasonable level of mobility and fitness. If you have any health questions or concerns regarding the suitability of the WalkCasts for your use, you agree to seek the advice of a physician. You represent and warrant that you have received consent from your physician to participate in health and fitness programs, workouts, exercises, or any other related activities.
4. Proprietary Content
Our WalkCasts contain content of the company that is or may be protected by copyright, trademark, patent and other laws, and the company owns and retains all rights in such content and the WalkCasts. Our WalkCasts may contain content of our licensors or third parties. You may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, sell or otherwise use such content appearing on or through the WalkCasts.
You agree and acknowledge that we may send messages including, but not limited to, notifications, special offers, promotions, commercial advertisements, and marketing materials, in connection with the WalkCasts.
Platform
To use or otherwise access the WalkCasts, you must have a mobile device that is compatible with the WalkCasts and the Platform. We do not warrant that the Platform will be compatible with your mobile device. Your wireless carrier’s normal messaging, data and other rates and fees will apply. In addition, downloading, installing, or using the Platform may be prohibited or restricted by your carrier, and not all Platform may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Platform are available for your mobile device, and what restrictions, if any, may be applicable to your use of the Platform.
By using the Platform, you expressly agree that we may communicate with you regarding the WalkCasts by SMS, MMS, text message, or other electronic means directed to your mobile device and that certain information about your usage of the Platform may be communicated to us.
In the event you change or deactivate your mobile device telephone number, you agree to promptly update your account information to ensure that messages are not sent to the person that acquires your old number.
We hereby grant you a limited, non-exclusive, non-transferable, non-sub licensable, revocable license to use one copy of a given Mobile Platform downloaded directly from a legitimate marketplace solely in object code format and solely for your personal use for lawful purposes, on a single compatible mobile device that you own or control.
You may not:
- modify, disassemble, decompile or reverse engineer the Platform, except to the extent that such restriction is expressly prohibited by law;
- rent, lease, loan, resell, sublicense, distribute, or otherwise transfer the Platform to any third party or use the Platform to provide time sharing or similar services for any third party;
- make any copies of the Platform;
- remove, circumvent, disable, damage, or otherwise interfere with security-related features of the Platform, features that prevent or restrict use or copying of any content accessible through the Platform, or features that enforce limitations on use of the Platform; or
- delete the copyright and other proprietary rights notices on the Platform.
You acknowledge and agree that we may from time to time issue upgraded versions of the Platform, and may automatically electronically upgrade the version of the Platform that you employ on your mobile device. You expressly consent to such automatic upgrading on your mobile device, and agree that the Terms (and any additional modifications of the same) will apply to all such upgrades. With respect to any open source or third-party code that may be incorporated in the Platform, such open source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.
The foregoing license grant is not a sale of the Platform or any copy thereof, and we retain all rights, title, and interest in the Platform (and any copy thereof). Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in the Terms is void.
6. Your Account and Privacy
We may ask you to create an account and/or provide certain information about yourself to enhance your use of the WalkCasts. Please secure and maintain the confidentiality of any usernames, passwords or other private information. We collect some data about you and your usage of the WalkCasts for the sake of improving your and other users’ experiences. We will not voluntarily share any of this information with any third parties except with your explicit permission. We will own any data you provide us in terms of questions your access, use and downloading of the WalkCasts and all other information you may provide.
7. Personal Use Only
Our WalkCasts are for the personal entertainment use only and may be used for commercial purposes only if such use is authorized by us in advance. To seek permission to make commercial use of the WalkCasts, email us at Information@walkmymind.com.
8. Assumption of Risk
You acknowledge and agree that you understand the scope, nature and extent of the risks involved in using the WalkCasts and that some risks cannot be foreseen. You acknowledge and agree that these risks include, but are not limited to: defects in the streets and sidewalks; proximity to vehicle and other traffic; poor lighting; damage to property; health risks; bodily injury; disfigurement or death. YOU VOLUNTARILY, FREELY, AND EXPRESSLY CHOOSE TO INCUR ALL RISKS ASSOCIATED WITH USING OUR WALKCASTS, understanding that those risks may include bodily and personal injury, damage to property, disfigurement or death.
9. Indemnification
You agree to defend, indemnify and hold harmless the company and its affiliates and the company’s and its affiliates’ respective stockholders, members, directors, officers, managers, employees, consultants, subcontractors, partners, agents, licensors, suppliers, advisors, representatives, successors and assigns (collectively, the “Company Parties”) from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind (including reasonable attorneys’ fees) arising out of or resulting from (i) your breach or violation of any of the terms of this Agreement; and (ii) your use or misuse of, or access to, the WalkCasts. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify any Company Party under this Agreement, and you agree to cooperate with our defense of these claims.
10. Release from Claims
You hereby release, discharge and hold harmless the Company Parties from any and all liability, claims, demands, expenses, or causes of action whatsoever arising out of any damage, loss or injury to you or your property, or your death, while accessing, using or downloading any WalkCasts or other activities covered by this Agreement, whether resulting from the negligence or other fault, either active or passive, of any of the Company Parties, or from any other cause. You specifically waive any unenforceability or public policy argument that you could make or could be made on behalf of your estate or by anyone who would sue the Company Parties as a result of the activities covered by this Agreement.
11. Agreement not to Sue
You agree that neither you nor your heirs, executors, administrators, personal representatives, or anyone else claiming on your behalf, shall ever institute any lawsuit or cause of action against any of the Company Parties, or initiate or assist in the prosecution of any claim for damages against any of the Company Parties which you may have by reason of injury to your person or property, or your death, arising from the activities covered by this Agreement, whether caused by the negligence or fault, active or passive, of any of the Company Parties, or from any other cause. You hereby so instruct your heirs, executors, administrators, personal representatives, or anyone else claiming on your behalf. Should any such lawsuit or cause of action be instituted against any of the Company Parties, you agree that such Company Parties shall be entitled to recover from you attorney’s fees and costs incurred in the defense of such lawsuit or cause of action, including any arising therefrom.
12. Disclaimer of Warranties
Our WalkCasts are presented on an “as is” and “as available” basis. We make no representations or warranties of any kind whether express or implied in connection with the content and information contained in the WalkCasts including, but not limited to, warranties as to content and information being timely, accurate and/or available, merchantability, non-infringement of intellectual property or fitness for a particular purpose, to the extent to which such representations and warranties may lawfully be excluded. We make no representation or warranties of any kind that the functions contained in our platform or the WalkCasts will be uninterrupted or error-free, that defects will be corrected or that the services, systems, networks or servers that make them available are free from viruses or other harmful components. We shall have no liability in the event you suffer an injury in connection with the use of or access to any WalkCasts under this Agreement.
13. Limitation of Liability
NO COMPANY PARTY WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF, OR ACCESS TO, THE WALKCASTS UNDER THIS AGREEMENT.
IN NO EVENT WILL ANY OF THE COMPANY PARTIES’ TOTAL LIABILITY (IN THE AGGREGATE) TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR ACCESS, USE, OR MISUSE, OF THE WALKCASTS WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, OR OTHERWISE EXCEED THE AMOUNTS PAID BY YOU FOR ACCESSING OR USING THE WALKCASTS DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM OR ONE THOUSAND DOLLARS ($1,000.00), WHICHEVER IS GREATER.
YOU FURTHER AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH ABOVE WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, THE EXCLUSIONS, AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY IN THEIR ENTIRETY TO YOU. YOU AGREE, HOWEVER, THAT OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
14. Modification
We may, at any time, modify, supplement, revoke or otherwise alter this Agreement for any reason in our sole discretion. We may deny or restrict your ability to access, use or download the WalkCasts if we believe your use or misuse thereof, or access thereto, does not comply with our Terms or for any other reason. You agree to periodically check this Agreement for any changes. Your continued access to, use of or downloading of the WalkCasts after the posting of any revisions or modifications to this Agreement constitutes your binding acceptance of such changes.
15. Term and Termination
This Agreement, and any posted revision to this Agreement, shall remain in full force and effect while you use the WalkCasts. You agree that we may, under certain circumstances and without prior notice, immediately terminate your access to or use of the WalkCasts. All terminations will be made in our sole discretion and that we are not liable to you or any third party for any termination of your access to or use of the Services.
16. Comments and Suggestions
We value your comments, suggestions and other communications regarding the WalkCasts (collectively, “Communications”). You hereby grant us a worldwide, non-exclusive, perpetual, irrevocable, assignable, transferrable, sub-licensable, fully paid up, royalty-free license to copy, distribute, create derivative works of, publicly display and perform, and otherwise exploit such Communications and to use, make, have made, sell, offer for sale, import and export products and services based on such Communications.
17. Force Majeure
We will not be liable or responsible to you for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond our reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, insurrection or other civil unrest or disturbances; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) shortage of adequate power or transportation facilities; (j) Internet, computer equipment, telecommunications equity or security failures; and (k) hacking
18. Access in other Locations
We do not make any representation that the WalkCasts are appropriate or available for use in other locations, and access to them from territories where the content or use of the WalkCasts is illegal is prohibited. Those who choose to access the Services from locations outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws.
19. Miscellaneous
No Frustration of Purpose of Agreement. The parties shall not take any actions or fail to undertake any action which would frustrate the purpose of this Agreement.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising from or related to use of or access to the WalkCasts, Services, this Agreement and/or our Privacy Policy must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Headings. The headings in this Agreement are for reference only and will not affect the interpretation of this Agreement.
Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Governing Law. All matters arising out of or relating to this Agreement will be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).
Dispute Resolution; Waiver of Class Action. Any controversy or claim arising out of or relating to this Agreement will be will be resolved individually, without resort to any form of class action, and submitted to arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules then in effect (the “Rules”). The arbitration will be heard by one arbitrator, to be selected pursuant to the Rules. The arbitration will take place in Philadelphia, Pennsylvania. The arbitrator will determine the dispute in accordance with the substantive and procedural laws of the State of Delaware. Judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. There will be limited discovery prior to the arbitration hearing as follows: (a) exchange of witness lists and copies of documentary evidence and documents relating to or arising out of the issues to be arbitrated, (b) depositions of all party witnesses, and (c) such other depositions as may be allowed by the arbitrators upon a showing of good cause. The arbitrator will be required to provide a reasoned basis in writing for the final award or any interim or partial award. A court reporter will make a stenographic record of all hearings, with such record constituting the official transcript of such proceedings.
YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY;
YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE; AND
YOU MUST FILE ANY CLAIM WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE OR IT IS FOREVER BARRED.
