Last Updated: October 14, 2020
THE SERVICES ARE NOT MEANT FOR ADDRESSING OR ASSISTING WITH EMERGENCIES OR MEDICAL CRISES AND MUST NOT BE USED AS A SUSBTITUTE FOR EMERGENCY OR MEDICAL CARE. If you are experiencing an emergency, a medical crisis, or are considering taking any actions that might cause harm to you or others, promptly dial 911 or the local emergency assistance number in your jurisdiction or, if it is safe and appropriate for you to do so, travel to your closest appropriate hospital or medical centre. If you are having thoughts of suicide, please call 911 (or the local emergency assistance number in your jurisdiction) or the 24-hr National Suicide Prevention Lifeline in your jurisdiction (For Canada: 1-833 456-4566; For USA: 1-800-273-8255).
1. INTRODUCTION
1.1. Acceptance of Agreement. Welcome to Mindleap Health. This Terms of Use (the “Agreement”) is a legally binding agreement between you and Mindleap Health Inc. (“Mindleap”, “us”, “we”, “our”). This Agreement governs your use of: (a) the Mindleap Health website, located at https://mindleap.health/ (the “Site”); (b) the Mindleap Health application for mobile devices and other supported devices (the “App”); and (c) all other services provided by Mindleap (the Site, App, and all other services provided by Mindleap, the “Services”). “App” includes all related documentation, and updates and upgrades that replace or supplement the App and are not distributed with a separate license. This Agreement also governs your use of products and services you receive through the Services.
BY USING THE SERVICES, BY DOWNLOADING, INSTALLING, OR USING THE APP, OR BY CLICKING THE “ACCEPT AND SIGN UP” BUTTON OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU ARE AT LEAST THE OLDER OF 18 YEARS OF AGE AND THE AGE OF MAJORITY IN YOUR JURISDICTION.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE THE SERVICES.
1.2. IMPORTANT INFORMATION – PLEASE READ. Our Services are designed to connect users of our Services (“Users”) with mental health specialists so as to receive assistance and guidance with integrating their prior psychedelic or consciousness-expanding experiences and translating them into positive changes. Our Services are not designed or intended for the integration or translation of a presently occurring psychedelic experience and must not be used for that purpose. Psychedelic substances are legally controlled or prohibited in many jurisdictions, but there are legal means to have a psychedelic or conscious-expanding experience in certain circumstances. You are solely responsible and liable for adequately informing yourself of the Laws of your jurisdiction before using our Services and determining if use of our Services and the receipt of Specialist Services (defined below) is lawful in your jurisdiction. Our Services are meant to be used exclusively in connection with lawful activities and must not be used in connection with illegal substances or illegal activities. Without limiting the previous sentence, you are not permitted to promote, procure, consume, or sell illegal substances through the Services. Do not use psychedelic substances if doing so is unlawful in your jurisdiction. Possession of psychedelic substances in violation of applicable laws can carry significant penalties, including years of incarceration.
1.3. Notice of Binding Arbitration; Waiver of Class Action. THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION IN SECTION 21 WHICH PROVIDES THAT YOU WILL RESOLVE ALL DISPUTES THROUGH MANDATORY AND BINDING ARBITRATION, UNLESS YOU OPT OUT THROUGH THE MECHANISM PROVIDED IN THIS AGREEMENT OR ARE IN A PROVINCE, STATE, OR COUNTRY IN WHICH THE COURTS WILL NOT PERMIT YOU TO CONSENT TO BINDING ARBITRATION. THIS MEANS THAT, IN THE EVENT OF A DISPUTE WITH MINDLEAP, YOU WILL NOT BE ABLE TO HAVE THAT DISPUTE RESOLVED BY A JUDGE OR A JURY. ADDITIONALLY, IN SECTION 21 OF THIS AGREEMENT, YOU ALSO WAIVE YOUR RIGHT TO A JURY TRIAL AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS AGAINST MINDLEAP. PLEASE CAREFULLY READ SECTION 21.
1.4. Entities. If you are downloading or installing the App or otherwise using the Services or on behalf of a legal entity (including a governmental organization), then you affirm: (i) that you are an authorized representative or agent of that entity with the authority to bind such entity to this Agreement; and (ii) that such entity accepts and is bound by this Agreement. In such a circumstance, the words “you” and “your” as used in this Agreement will refer to and apply to both that entity and you personally.
1.5. Additional Terms. We may supplement this Agreement with additional written terms (“Additional Terms”) relating to specific content, goods, opportunities, or services made available or supplied by us. You will have the opportunity to review these Additional Terms before accepting them. If you reject Additional Terms, certain content, goods, or services may not be available to you. Any Additional Terms will govern to the extent of any conflict or inconsistency with this Agreement. If you wish to provide Specialist Services through the Services, you will need to accept Additional Terms in the form provided by Mindleap.
1.6. Age. The Services are intended for and directed to persons who are at least the older of 18 years of age and the age of majority under applicable law to form a binding contract with Mindleap. If you do not meet this requirements you must not use the Services.
1.7. Accessibility. We seek to make the Services as accessible as possible. If you have any problems accessing the Services or the content contained on it, please contact us at support@mindleap.health
1.8. Modifications to the Agreement. We reserve the right in our in our sole discretion to revise and update this Agreement from time to time by posting the modified version on the Services or by emailing you at the email address we have on file for your Account. Any and all such modifications are effective immediately upon posting and apply to all continued use of the Services. You agree to periodically review this Agreement in order to be aware of any such modifications and your continued use of the Services constitutes your acceptance of such modifications. If you do not wish to continue using the Services under the modified terms, you may terminate this Agreement in the manner described in Section 22.
1.9. Modifications to the Services. The Services, including its functionalities, features, pricing, information, and materials, may be changed, withdrawn or terminated by Mindleap at any time in Mindleap’s sole discretion without notice. We will not be liable if for any reason all or any part of the Services is restricted to users or unavailable at any time or for any period.
1.10. Geographic Limitations. The Services have been designed for persons resident in Canada. Mindleap does not represent, warrant, covenant, or guarantee that the Services will be available or suitable in any particular jurisdiction. Persons who use the Services outside of Canada do so at their own risk and are solely responsible for determining if use of the Services is lawful in their jurisdiction.
2. THE SERVICES
2.1. Description. The Services provide an online marketplace through which you can: (a) find and communicate with health and wellness coaches registered on our Services (“Specialists”) for the purposes of purchasing and receiving mental health and wellness coaching, psychedelic aftercare coaching, addiction recovery coaching, and such other mental health coaching services as Mindleap may approve from to time (collectively, the “Specialist Services”); and (b) purchase and access digital materials, including text, information, data, software, images, audio, or video materials (“Content”). You are solely responsible and liable for determining the suitability of any Specialist you engage or Specialist Services or Content you receive or use.
Some Services or Content may be accessible only after you have paid a fee or a subscribed for access. Some Services or Content may be subject to additional rules, guidelines, or Additional Terms.
2.2. No Medical Services Disclaimer. The Services do not include medical, clinic, therapeutic, or counselling services or advice. No doctor-patient or therapeutic relationship (therapist-client) relationship is established through your use of the Services nor through your engagement of Specialists. Mindleap and its staff are not medical professionals, psychologists, therapists, or counsellors. Any Content, materials, or other information made available through the Services are provided for informational purposes only and does not constitute medical advice, therapeutic advice, legal advice, or advice of any other kind. You shall not rely on Content, materials, or other information made available through our Services as a substitute for advice, therapy, treatment, or care from a qualified medical professional, psychologist, therapist, or counsellor.
2.3. No Referrals. The Services are not a referral service. Mindleap will not refer or recommend you to Specialists, or vice versa. Mindleap merely provides a marketplace where Specialists and clients (such as you) can locate each other and arrange for the provision and receipt of certain mental health and wellness related services and content. Mindleap does not charge a referral fee to a Specialist when you connect with a Specialist or enter an Engagement Agreement or at any other time. Any information about you or Specialists which Mindleap makes available through the Services is not and will not be interpreted as a referral, introduction, recommendation, or endorsement. Such information is made available on the Services solely for the convenience of our Users to assist them with voluntarily choosing to connect with and retain the services of Specialists registered on the Services.
2.4. Relationship with Specialists and Content Licensors. When you agree to engage a Specialist to provide Specialist Services and that Specialist accepts such engagement, you and that Specialist enter into an agreement directly with each other (an “Engagement Agreement”). Subject to applicable Law, you and the applicable Specialist may include whatever terms you together deem appropriate for the Engagement Agreement, except that the terms of your Engagement Agreement must not conflict with this Agreement. You agree that your Engagement Agreement with each Specialist is deemed to include a term that deems your Engagement Agreement terminated if this Agreement is terminated or if Mindleap revokes your access to the Services.
Mindleap is not a party to any dealings between you and Specialists. Among other things, this means that Mindleap is not a party to any Engagement Agreements, or any other agreements, between you and Specialists. Mindleap is not responsible or liable for ensuring that Specialists provide agreed upon or suitable Specialist Services and has no liability to you if any Specialist fails to do so. Mindleap is not responsible or liable for the acts or omissions of Specialists. Mindleap has no responsibility or liability to resolve disputes between you and Specialists, or between you and licensors of Content, and Mindleap is not a party to any such disputes. If Mindleap attempts to assist in the resolution of any dispute between you and a Specialist or between you and a Content licensor, Mindleap will not be liable to you for such assistance or any results flowing from such assistance. Your relationship with Specialists is strictly between you and the Specialists.
2.5. Specialists Relationship with Mindleap. Subject to certain restrictions imposed by Mindleap governing the Specialists’ use of the Services, Specialists have sole discretion to determine the manner and means by which they provide the Specialist Services, including when, how, and from where the Specialist Services are provided and the prices for their Specialist Services. Mindleap and its employees do not supervise the provision of Specialist Services by Specialists. Mindleap does not provide Specialists with equipment nor does Mindleap provide Specialists with a premises from which they provide Specialist Services. Mindleap does not require Specialists to complete a Mindleap training program as a condition of providing Specialist Services through the Services. Specialists are not agents, representatives, employees, joint venturers, or franchisees of Mindleap and do not have authority to legally bind Mindleap. Mindleap is not an agent or representative of Specialists.
2.6. Credentials of Specialists. Mindleap does not endorse or recommend any of the Specialists on the Services. While we do make efforts to verify Specialists’ credentials and qualifications, we do not represent, warrant, or guarantee the accuracy, completeness, or sufficiency of our verification process nor do we represent, warrant, or guarantee that any information provided by Specialists on the Services or to you, including information about their credentials and qualifications, is current, accurate, complete, or true.
2.7. Your Records. When using the Services, you will be prompted to provide certain information about yourself to the services concerning your health, habits, emotions, wellbeing, and other related matters (“Your Data”). We may share Your Data with Specialists you have engaged through the Services for the purpose of facilitating their provision of Specialist Services to you. Specialist who provide you Specialist Services will submit to the Services notes about you and the Specialist Services they provide you (“Specialist Notes”). Specialist Notes will be available to the Specialist who submitted them and to any other Specialists who you engage to provide you with Specialist Services. Mindleap is not responsible or liable for any Specialist’s use of Your Data or Specialist Notes pertaining to you. We do not make any representations or warranties that Specialists will keep Your Data and Specialist Notes safe from unauthorized access.
2.8. Use of Services Conditional. Your use of the Services is subject to and conditional upon your compliance with this Agreement.
3. REGISTRATION OBLIGATIONS
3.1. Account Registration. To use certain functionalities and features of the Services, you must first complete the registration process to create an account (“Account“) and select and register a unique username and password (collectively, “Credentials“).
3.2. Registration Data. During the registration process, you will provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (such information being the “Registration Data“). You will also maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or complete, or if Mindleap has reasonable grounds to suspect that such information is untrue, inaccurate, not current or complete, Mindleap has the right to suspend or delete your account and refuse any and all current or future use of the Services (or any portion thereof) by you.
3.3. Responsibility for Account. Mindleap may act upon any communication that is given through your Account or by using your Credentials. Mindleap is not required to verify the actual identity or authority of a person using your Account or Credentials, but Mindleap may in its discretion at any time require verification of the identity of a person seeking to access your Account and may deny access to and use of your Account if Mindleap is not satisfied with the verification. If Mindleap, in its discretion, considers your Account or Credentials to be unsecure or to have been used inappropriately, then Mindleap may immediately cancel the Account or Credentials without any notice to you. You may be required to change your Credentials from time to time.
Your Account and Credentials are specific to you and may not be shared with or transferred to any other person. You are solely responsible and liable for maintaining the confidentiality of your Credentials and you will be held responsible and liable for any harm caused by disclosing or resulting from any unauthorized use of your Credentials. You will not permit any other person to use your Account or Credentials, and you will immediately notify Mindleap if you know or suspect that your Account or Credentials have been used by any other person. You shall not use an Account which is not your own. You shall not access your Account from a public or shared computer. You shall logout from your Account at the end of each session.
3.4. Phone Number. By providing Mindleap with your phone number, your consent to receive calls and text-messages (SMS) from Mindleap and regarding the Services. Standard rates apply. Subject to reasonable processing times, you may opt-out of these communications by using the unsubscribe mechanism provided to you.
3.5. Responsibility for Expenses. You are solely responsible and liable for all costs, expenses, and liabilities related to your access, use, and receipt of the Services, including internet costs and costs associated with your purchase and receipt of Specialist Services through the Services.
3.6. Device Limitations. Mindleap does not warrant that the Services will work on all devices. Specialist is solely responsible and liable for obtaining and maintaining compatible devices necessary to access and use the Services, as updated from time to time.
3.7. Suspension or Deletion of Account. Mindleap may at any time and from time to time, suspend or delete your Account, and any user name, password, or other identifier used by you, for any or no reason, including for any violation of any provision of this Agreement.
4. USE OF THE SERVICES
4.1. No Illegal Activities. Mindleap does not encourage, endorse, recommend, or support illegal activities or the purchase, sale, or use of illegal or restricted substances (including psychedelic substances). You are strictly prohibited from using the Services to: (a) promote, procure, sell, or consume illegal or restricted substances; or (b) encourage, endorse, recommend, or support illegal activities or the use of illegal or restricted substances.
4.2. Consultation with Medical Professional. You agree that you will consult with a qualified medical or clinical professional before using the Services, using any Content, or obtaining any Specialist Services to confirm if the Services, Content, or Specialist Services are appropriate for you.
4.3. Limits on Services. You shall not use the Services to procure or receive medical, counselling, clinical, psychotherapeutic, or other therapeutic or regulated mental health or medical services. You acknowledge that Specialists do not provide Specialist Services in the capacity of a medical doctor, registered, counsellor, psychologist, or psychiatrist. The Services are not a replacement for qualified medical advice, treatment, and care from a physician or other qualified medical professional, therapist, counsellor, or psychologist. You shall not seek diagnosis or treatment of any medical condition through use of the Services.
4.4. Non-Circumvention. You shall not circumvent the Services. Activities constituting circumvention of the Services include: (a) arranging for the receipt of Specialist Services from Specialists through means outside of those provided by the Services; (b) making payment for Specialist Services through means other than the payment functionalities and features of the Services; (c) receiving Specialist Services from Specialists outside of the App; and (d) providing your contact information to a Specialist or requesting the contact information of a Specialist. However, you may communicate with a Specialist through means outside of the Services if you have a relationship with that Specialist that pre-dates the date you accepted this Agreement. Mindleap may require you to provide documentary evidence of such earlier relationship.
4.5. Communications. Mindleap reserves the right, but has no obligation, to monitor, edit, review or remove discussions, chats, postings, and communications made through the Services. Mindleap has no responsibility or liability for any content posted on, or communications made through, the Services nor for any error, omission, infringement, defamatory statement, obscenity, or inaccuracy contained in any such information.
4.6. Acceptable Use. You shall not, and shall not permit any other person to, use the Services, your Account, or any Content except as expressly permitted by this Agreement and, in the case of Third-party Materials, the applicable third-party license agreement governing use of such Third-party Materials (if any). Without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits:
(a) copy, modify, redistribute, “rip”, record, transfer, rent out, stream, lease, transmit, resell, perform, publicly display, broadcast, make available to the public, or create derivative works or improvements of, or otherwise exploit or commercialize the Services or Content except as expressly permitted by Mindleap;
(b) transfer cached copied of the Content from the device in which the App is installed on to any other device;
(c) access or use Content through any software or means other than the Services;
(d) make available any service of the Services or Content to any person, freely or for a fee, except as expressly provided for in this Agreement;
(e) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Content, or any part thereof;
(f) bypass or breach any security device or protection used by the Services or Content;
(g) use the Services for the purposes of competitive analysis of the Services;
(h) use the Services to develop a competing product or service, to build a product or service using similar ideas, features, functions or graphics of the Services, or to copy any ideas, information, features, functions or graphics of the Services;
(i) introduce or otherwise provide to or through the Services any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(j) damage or otherwise impede or harm in any manner the Services or Mindleap’s provision of services to any third party, in whole or in part;
(k) remove, delete, alter or obscure any intellectual property or proprietary rights notices from the Services or Content, including copies of them;
(l) access or use the Services or Content in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right, privacy right, or other right of any third party, or that violates any applicable Law;
(m) otherwise access or use the Services or Content beyond the scope of the authorization granted under this Agreement;
(n) use the Services in violation of any Law or to facilitate violation of a Law;
(o) use the Services for a tortious purpose, to facilitate any tortious activity, or to obtain any unlawful property or services, under applicable Law;
(p) use the Services to harass, inconvenience, annoy, cause nuisance, occasion violence on any person, or cause property damage;
(q) threaten, defraud, stalk, or harm any person when using the Services;
(r) use the Services unless doing so is lawful in your jurisdiction;
(s) use or access, or attempt to use or access, any account on the Services which is not your Account;
(t) impersonate any person or entity or falsely state or misrepresent your affiliation with a person or entity;
(u) submit misleading, false, inaccurate, or fraudulent information to the Services;
(v) make any unproven medical or health related claims on or through the Services;
(w) seek medication, supplements, or psychoactive substances through the Services;
(x) take any action that would damage, harm, or diminish Mindleap’s or the Services’ reputation, goodwill, or public image;
(y) represent or suggest that Mindleap endorses any person, business, product, or service unless Mindleap has separately agreed to do so in writing;
(z) use scrappers, indexing tools, or other automated tools for the purposes of data mining or surveying on the Services;
(aa) use bots or automated processes on the Services;
(bb) mirror, frame, or link to any part of the Services;
(cc) harvest or otherwise collect, use or disclose personal information about Users, including email addresses, without their prior consent;
(dd) collect, use, or disclose personal information of other Users contravention of applicable data protection and privacy laws; or
(ee) encourage or solicit the services of Specialists through means outside of the Services.
4.7. Responsibility for Use of Services. You are responsible and liable for all of your uses of the Services and Content. Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the Services or Content by you or by any other Person to whom you might provide access to or use of the Services or Content, whether such access or use is permitted by or in violation of this Agreement.
4.8. Loss of Access. We reserve the right to prevent or suspend your use of the Services if you do not comply with any part of these terms and conditions or any applicable law.
5. RESEARCH
5.1. Research. From time to time, Mindleap participates in research with certain universities and other entities. You might be offered opportunities to participate in this research. If you choose to participate in such research, you might be required to submit additional forms applications, and information, and read and accept additional terms and conditions and privacy policies, some of which may belong to third-parties. Where you have agreed to participate in such research, you authorize us to disclose Your Data and Specialist Notes to such researchers as they may request for their research.
6. PURCHASE OF CONTENT AND OTHER PRODUCTS OR SERVICES
This Section 6 applies only to products and services sold by Mindleap and does not apply to Specialist Services.
6.1. Advertisements and Acceptance. Advertisements respecting products (which includes Content) and services for sale on our Services are invitations to you to make offers to purchase products and services and are not offers to sell. You agree that your order is an offer to buy, in accordance with this Agreement, all products and services listed in your order. A properly-completed order on the Services constitutes only your offer to purchase the products or services in your order, even if we have processed payment for such offer. All orders must be accepted by Mindleap or we will not be obligated to sell the products or services to you. We will confirm acceptance by sending you an acceptance confirmation email or otherwise an express written confirmation of acceptance. Once your order has been accepted by us, a separate sales contract based on this Agreement (as applicable) for your order will be deemed formed between us and you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered. You must immediately notify us of any discrepancy between the details in the order confirmation email you receive and your actual order. Failure to notify us of such discrepancy within 24 hours of your order will result in you becoming bound to purchase the items as described in the order confirmation email.
6.2. Depictions of Products. Products may differ slightly from how depicted in any illustrations, photography, or descriptions on the Services. We have endeavoured to display as accurately as possible the colours of our products as they appear on the Service. However, as the actual colours you see will depend on photographic processes and your screen, we cannot guarantee that your screen’s display of any colour will be accurate.
6.3. Product Changes. Our products and services may change or be discontinued at any time. Products and services that are delivered will have similar characteristics of the products and services you ordered, but non-material changes between what is delivered and what is described online are possible. We may ship products with minor specifications changes, provided that the characteristics of such product are materially the same as the ordered products.
6.4. Cancellation or Modification. No cancellation or modification of an order is effective until such time as Mindleap confirms acceptance of the cancellation or modification. Mindleap reserve the right, in its sole and arbitrary discretion, to reject any request for cancellation or modification of an order. You shall reimburse Mindleap for all reasonable costs and expenses incurred by Mindleap in connection with the cancellation or alteration of an order. 6.5. Availability. Delivery of products and services is subject to availability. If you have paid for a product or services but it is or becomes unavailable before delivery to you, we will notify you of the unavailability and, at our election, either refund you the purchase price for such product or service provide you with a replacement product or service of equal or greater value. Alternatively, you may keep your order until such time as the product becomes available again, subject to our right to cancel the order in the event the price of the product or service has materially changed upon becoming available. 6.6. Limited Quantities. Despite anything to the contrary in this Agreement, we may impose a limit on the purchasable quantity of a particular product or service.
6.7. Promotional Offers. At our discretion, we may make available certain products or services at a discount or for free for a trial period (“Promotions”). We reserve the right to modify or cancel these Promotions at any time. If we reasonably determine you have violated terms applicable to the Promotion, we may charge you the full price for the product or service that was otherwise subject to the Promotion.
6.8. Content Purchases.
(a) Purchasing Content. Content made available through the Services is licensed, not sold. This means that when you buy Content on the Services, you are purchasing a right to use that Content in in the manner and subject to the limitations described in this Agreement; you do not actually acquire title to or ownership of the Content itself.
(b) Content License. When you purchase Content through the Services, you receive a non-exclusive, non-transferable, non-sublicensable, revocable license (the “Content License”) to store, access, view, use, and display copies of the purchased Content on your device solely through the use of the Services for your personal, non-commercial use only. Except for the limited license granted to you in the previous sentence, all right, title, and interest (including all intellectual property rights) in and to the Content remains with Mindleap or its third-party licensors. If you violate this Agreement, the Content License will immediately terminate and you will lose access to your purchased Content without any refund or recourse.
(c) Content Availability.
(i) Availability Period. Purchased Content will continue to be available to you until the earlier of: (1) Mindleap ceasing to have the right to license such Content to you; (2) the expiration of any time limited licensing period or rental period for such Content that was disclosed to you prior to your purchase of that Content; (3) the deletion of your Account; (4) the termination of the Content License that corresponds with such purchased Content in accordance with this Agreement; or (5) the termination of this Agreement. Upon Content ceasing to be available to you in accordance with this Agreement, the corresponding Content License will be deemed revoked.
(ii) Removal of Content. Mindleap may delete Content from your device and stop providing you with access to Content if: (1) Mindleap loses the right to license such Content to you; (2) there are security concerns with such Content; (3) Mindleap has received a Legal Claim in respect of such Content; (4) the Services or such Content is discontinued; (5) the licensor of such Content has breached its Agreement with Mindleap; (6) you breach this Agreement; (7) such Content violates Mindleap’s Community Standards (as determined by Mindleap from time to time); or (8) required by applicable Law.
(iii) Suspended, Disabled, or Deleted Accounts. If your Account is suspended, disabled, or deleted, you may lose access to your purchased Content.
6.9. Content Use Restriction. Content made available through our Services, whether for free or for a price, must not be used: (a) to diagnosis or treat any medical condition, except where such use has been approved by your physician or healthcare provider; (b) in substitution for qualified care from a physician, therapist, counsellor or other healthcare or medical professional; or (c) in connection with any activities where the inaccuracy or failure of the Content could cause psychological harm, injury, death, damage to property, or environmental harm. You are solely responsible and liable for all your uses of the Content.
7. FEES & PAYMENT
7.1. Prices. All prices, discounts, and promotions posted on the Services or in any promotional materials are subject to change without notice. The price charged for a product or service will be clearly stated on the Services and in any order confirmation email sent to you. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your total price. We strive to display accurate price information, however, we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
7.2. Fees. You shall promptly pay the price for all products and services (which for certainty includes Content and Specialist Services) you purchase through the Services, plus applicable taxes. Fees payable for Specialist Services (“Session Fees”) and Content will be communicated to you through the Services before you complete your purchase.
7.3. Session Fees. The Services enable you to pay for Specialist Services in accordance with your Engagement Agreements. However, Mindleap is not the seller of Specialist Services and does not represent you or the Specialists in respect of Engagement Agreements or the purchase or sale of Specialist Services. Session Fees will be charged to you at the end of each session of Specialist Services. Mindleap does not determine the Session Fees and does not participate in or receive a commission from the Session Fee. You are obligated to make prompt payment to Specialists of the Session Fees in the amounts and at the times required by your Engagement Agreements and you shall make such payments only through the means provided on the Services.
7.4. Service Fees. Specialists pay Mindleap a service fee for their use of the Services in accordance with the written agreement between Mindleap and each Specialist (the “Service Fee”). Responsibility for paying the Service Fee is borne solely by the Specialists. When you pay Session Fees, we credit the full amount of your payment to the Specialist’s account and then deduct the Service Fee from the Specialist’s account in partial or full satisfaction of the Specialist’s Service Fee payment obligation.
7.5. Payment Method. We accept the payment methods indicated on our Services for your purchases of Specialist Services, Content, and other products or services we may make available for sale on the Services. When making a payment on the Services, you must comply with the applicable terms and services of the payment processor used to process your payment. You represent and warrant that any payment information you provide us is true and accurate and that you are authorized to use such payment method. You authorize us or our payment process to charge your payment method for all products or services you purchase through the Services plus any other charges that may accrue in connection with you Account, such as taxes and shipping charges.
7.6. In-App Purchases. Certain purchases you make through the App may be processed through the Google Play or Apple App Store from which you initially downloaded the App. The processing of such purchases may be subject to the terms and conditions and privacy policies of Google or Apple, as applicable. If you have a payment issue in respect of such purchases, you must contact Google or Apple directly to seek resolution.
7.7. Refunds. If your session of scheduled Specialist Services ends early or is cancelled due to the Specialist (for example, where the Specialist has poor internet connectivity or fails to attend the session) or due to a failure of the Services (for example, unexpected downtime of the Services), you may request a refund of the Session Fees for that session by contacting Mindleap @support@mindleap.health within seven days after such session. Mindleap has sole discretion to determine whether you are entitled to a refund. Where Mindleap determines that the session ended early or was cancelled due to causes within your own control, you will remain liable to pay the full Session Fee for that session.
7.8. Currency. The Services support payments in the currencies approved by Mindleap from time to time. The currency applicable to your charges will be displayed on the payment page before you complete purchase. Where currency conversion is necessary to process your payment, you will be solely responsible for all costs associated with such currency conversion. Your financial institution might charge you additional fees currency conversion. Your financial institution might charge you additional fees for converting your currency to one supported by the Services. We are not responsible for such costs or fees.
7.9. No Chargebacks. You shall not request that your credit card, bank, or other financial services provider charge back any fees charged pursuant to this Agreement. If you initiate a charge back in violation of this Agreement, Mindleap may dispute such charge back and may revoke your access to any purchased Content in respect of which the charge back relates.
7.10. Purchases Final. Except as expressly provided in this Agreement, all purchases and payments made through the Services are final and no returns, replacements, or refunds are permitted. If we accept a return, make a replacement, or process are refund in respect of Content, you may lose access to the Content you received through your initial purchase.
7.11. Non-Payment. If you fail to pay Session Fees or other amounts owed under this Agreement when due, Mindleap may, in addition to all other rights and remedies available to Mindleap:
(a) Restrict, suspend, or delete your Account;
(b) Stop providing you access to the Content which relates to your unpaid fees; and
(c) Revoke your access to the Services.
8. OWNERSHIP, USE AND INTELLECTUAL PROPERTY RIGHTS
8.1. Reservation of Rights. The Services and Content and all intellectual property rights in the Services and Content are owned by us or our licensors. We and our licensors reserve all our intellectual property rights (which include without limitation all copyright, trade marks, domain names, design rights, database rights, patents and all other intellectual property rights of any kind) whether registered or unregistered anywhere in the world.
8.2. No Circumvention. Nothing in this Agreement grants you any rights in the Services other than as necessary to enable you to access the Services. You agree not to try to circumvent or delete any intellectual property notices contained on the Services and in particular in any digital rights or other security technology embedded or contained within any Services content or materials.
8.3. Trademarks. Mindleap and Mindleap Health are our trademarks. Other trademarks and trade names may also be used on the Services. The use or misuse of any trademarks or any other content on the Services except as provided in this Agreement is strictly prohibited. Nothing contained on the Services will be construed as granting, by implication, estoppel or otherwise, any licence or right to use any trademark without our prior written permission.
8.4. Materials. Excluding Content that must be purchased to be accessed, Mindleap authorizes you to view, download and print a single copy of content provided on the Services for your personal use only and only in connection with your use of the Services and products and services ordered from us. You may not remove any trademark, copyright or other proprietary notices from such copy nor modify the material or content in any way. Except as otherwise set out in this Agreement, any copying or reproduction of the Services’ materials or content, in whole or in part, for commercial purposes or distribution, re-transmission, republication, modification, reverse engineering, sale or other exploitation of the Services or the Services materials or content without the prior written permission of Mindleap is strictly prohibited. We reserve the right to take such steps as we deem necessary, including legal action, to restrain such unauthorized and prohibited activity and we reserve the right to suspend or terminate your access to any part of the Services immediately, without prior notice, at its sole discretion. You are solely and fully responsible and liable for all consequences, however remote, resulting from your use of the Services or its materials and content.
9. DATA POLICY
9.1. Privacy Policy. At all times your personal information will be treated in accordance with Mindleap’s Privacy Policy, which can be viewed at: https://mindleap.health/legal/privacypolicy. We may modify our Privacy Policy from time to time.
9.2. Consent to Use User Data and User Content. You hereby grant all such rights and permissions in or relating to your User Data and User Content: (a) to Mindleap, its subcontractors, and its personnel, as are necessary or useful to perform the Services and to facilitate Specialists’ provision of Specialist Services to you; and (b) to Mindleap as are necessary or useful to enforce this Agreement and exercise Mindleap’s rights and perform its obligations hereunder. Without limiting the foregoing, Mindleap may Process your User Data and User Content to convert it into De-Identified Data.
9.3. Aggregate & De-Identified Data. Without limiting Mindleap’s rights, but for the purposes of clarity, Mindleap may use, reproduce, sell, publicize, process, or otherwise exploit De-Identified Data in any way, in Mindleap’s sole discretion, including aggregated with data from other Users or sources.
9.4. Data Accuracy. Mindleap will have no responsibility or liability for the accuracy of data uploaded or submitted to the Services by Specialist or Users, including without limitation Specialist Notes, User Data and any other data uploaded by Users.
9.5. Account Data Following Deletion. Except as required by Law, following the deletion of your Account, you lose access to your Account data, including your User Content, User Data, and any other files you have uploaded to your Account. We may retain all or part of such Account Data.
10. SOFTWARE & THE APP
10.1. Software. Where any software is made available for downloading from Services this is our copyrighted work and/or that of our licensors. You may only use such software in accordance with the terms of the end user licence agreement or other agreement, if any, which accompanies the software and, subject thereto, in accordance with this Agreement. All such software is made available for downloading solely for your internal use in a non-commercial manner (except as otherwise agreed in writing by Mindleap). Any reproduction or redistribution of software not in accordance with the end user licence agreement and/or this Agreement is expressly prohibited, and may result in severe civil and criminal penalties.
10.2. The App. Subject to and conditional on your compliance with all terms and conditions set forth in this Agreement, Mindleap hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to use, the App on your mobile device for your personal, non-commercial purposes in the manner permitted by this Agreement. The license in the preceding sentence does not include use by any third-party and you shall not permit any such use.
You may make one copy of the App solely for archival purposes and one copy of the App for backup purposes, except that you shall not permit any person to install or use any such copy other than if and only for so long as your original copy has been rendered inoperable. All copies of the App made by you are: (a) the exclusive property of Mindleap; (b) subject to the terms and conditions of this Agreement; and (c) must include all intellectual property rights notices contained in the original, such as trademark and copyright notices.
10.3. Third-Party Materials Contained in the App. The App may include software, content, data or other materials, including related documentation, that are owned by persons other than Mindleap (“Third-party Materials”) and that are provided to you on license terms that are in addition to and/or different from those contained in this Agreement (“Third-party Licenses“). You are bound by and shall comply with all Third-party Licenses. Any breach by you of any Third-party License is also a breach of this Agreement
10.4. Open Source Components. Notwithstanding Section 10.2, you acknowledge that certain components of the App may contain components licensed under “open source” software licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation, any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format (such component, “Open Source Components”). A list of the Open Source Components and their corresponding open source licenses will be available through the App under the “About Us & Legal” section of our App. To the extent required by the applicable open source licenses covering the Open Source Components, your use of the Open Source Components will be subject and governed by the terms and conditions of the applicable open source licenses. To the extent the terms of licenses applicable to Open Source Components prohibits any of the restrictions in this Agreement with respect to such Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of the license applicable to the Open Source Components require Mindleap to provide you with source code for such Open Source Components, such offer is hereby made, and you may exercise such offer by contacting Mindleap at hello@mindleap.health You hereby confirm that you have received all required license notices for Open Source Components included in your initial download of the App.
10.5. Updates. The App and software made available through the Services may automatically download and install updates from Mindleap or the licensors of the software, from time to time. These updates may include bug fixes, patches, new or improved functions and features, or new versions of the App or software. You consent to receiving such updates and authorize Mindleap or our licensors to deliver these updates to you without any additional notice. Mindleap and its third-party licensors are under no obligation to provide updates. Any updates provided by Mindleap in respect of the App are deemed to be part of the App.
10.6. Restrictions on Software Rights. Copies of the App or other software created or transferred pursuant to this Agreement are licensed, not sold, and you receive no title to or ownership of any copy or of the App or other software itself. Furthermore, you receive no rights to the App or software other than those specifically granted in Section 10.1 to 10.4 above. Without limiting the generality of the foregoing, you shall not use the App in a manner contrary to Section 4.6. Mindleap and its third-party licensors reserve and will retain their respective entire right, title, and interest in and to the App and all intellectual property rights arising out of or relating to the App, except as expressly granted to you under this Agreement.
10.7. Collection and Use of Information. Mindleap may, directly or indirectly through the services of third-parties, collect and store information regarding use of the App and about the devices upon which the App is installed or through which it otherwise is used. Mindleap may use such information to: (a) improve the performance or security of the App or develop updates to the App; (b) verify your compliance with the terms of this Agreement; and (c) enforce Mindleap’s rights in and to the App.
10.8. Disclaimer of Warranties. Software made available through the Services is warranted only to the extent expressly provided in the terms of this Agreement or the software’s applicable end user licence agreement. We hereby disclaim all other warranties, conditions and other terms (whether express or implied) with regard to such software, including all implied warranties and conditions of satisfactory quality, freedom from defects, merchantability, non-infringement, and fitness for a particular purpose. In no event shall our aggregate liability in respect of any such software exceed the limitations of liability in the applicable end user licence agreement, or in all other cases the amount you paid us for the relevant software.
10.9. U.S. Government-Restricted Rights. The App and any related documentation are deemed to be “commercial computer Software” and “commercial computer Software documentation” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display, or disclosure of the App and/or any related documentation by the US Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
10.10. Export Restrictions. The App and other products licensed or sold under this Agreement may be subject to the export control Laws of Canada, United States, and other jurisdictions. You are responsible for ensuring your compliance with such Laws. You shall not, and shall not permit any other person to, download, export, re-export, or release, directly or indirectly, the App into any country, jurisdiction, or Person to which the download, export, re-export, or release of the App: (a) is prohibited by applicable Law; or (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval). By downloading or using the App, you represent and warrant that you are: (x) not located in, under the control of, or a national or resident of any such country or jurisdiction; and (y) not any such Person.
10.11. App Stores. When you download or access the App from a source that is not directly Mindleap (such as the Apple App Store or Google Play Store) (such source, the “App Distributor”), you acknowledge and agree that:
(a) the App Distributor is not a party to this Agreement;
(b) the App Distributor has no responsibility to provide you with any maintenance, support, or updates to the App, except as otherwise agreed in writing by the App Distributor;
(c) the App Distributor has no liability to you for any liabilities, losses, damages, costs, or expenses caused by the App, except as otherwise agreed in writing by the App Distributor; and
(d) the App Distributor’s terms and conditions, and privacy policy, might apply to you. Mindleap is not a party to such terms and conditions or privacy policy.
11. SUBMITTING INFORMATION AND CONTENT TO THE SERVICES
11.1. User Content Licence. Portions of the Services may allow users to submit and exchange information and content (such information and content, “User Content“), such as images, text, audio, and video, but Mindleap does not screen, edit or review any User Content before it is submitted or transmitted. You retain the copyright and any other rights you already hold in your User Content. You grant Mindleap permission to access, Process, and otherwise use your User Content in order to provide Mindleap’s products and services to you and other Persons, to track and analyze your use of the Services, to conduct scientific research, to make your User Content available other users of the Services and other third-parties, and to exercise Mindleap’s rights and perform its obligations under this Agreement. To the extent your User Content contains personal information, Mindleap may also use that User Content as provided in our Privacy Policy. To the extent you have intellectual property rights in your User Content, you grant Mindleap a worldwide, perpetual, non-exclusive, royalty-free, sublicensable (through multiple tiers), transferable license to exploit, use, access, store, reproduce, adapt, translate, publish, publicly perform, publicly display, modify, repost, sublicense, create derivative works from, and distribute your User Content for the purposes outlined in this Agreement (the “User Content License”).
11.2. User Content Warranty. Each time you submit or post User Content on the Services, you confirm, represent, and warrant to Mindleap that you own your User Content or have received a valid license to your User Content and that submitting or transmitting your User Content to or through the Services will not violate the rights of any third party, including intellectual property, privacy, or publicity rights
11.3. Responsibility. You understand that all User Content, whether publicly posted or privately transmitted when posting, sharing, displaying, sending or submitting material using the Services, is the sole responsibility and liability of the person from whom it originated. This means that you, and not Mindleap, are entirely responsible and liable: (i) for all User Content that you upload, post, email, transmit, or otherwise make available via the Services; and (ii) for ensuring that all User Content is accurate, lawful, and does not include misleading information or infringe or violate anyone’s rights. Mindleap does not control the User Content posted via the Services and, therefore, does not guarantee the accuracy, integrity, or quality of any User Content. You therefore agree that you will not hold Mindleap responsible or liable for any inaccuracies or for any errors or omissions in any User Content, or for any loss, injury or damages of any kind incurred as a result of the use of or reliance upon any User Content posted, emailed, transmitted, or otherwise made available via the Services. You have sole responsibility and liability for your User Content (which includes, Public Ratings, feedback, and comments you submit to the Services), including responsibility and liability for its accuracy and for any legal liability that results from your User Content. Please note that User Content on the Services does not necessarily reflect the views of Mindleap, and Mindleap disclaims all responsibility and liability for any such User Content and for any losses or expenses resulting from their use or appearance on the Service.
11.4. Right to Retain, Delete, or Suspend Access to Use Content. You acknowledge that Mindleap does not pre-screen, monitor, or modify User Content, but that Mindleap has the right (but not the obligation) to refuse, remove, modify, or delete any User Content that is available via the Services for any reason. You agree that You shall not rely on the Services for backup or storage of your User Content. Mindleap may retain your User Content even if you are no longer using the Services but is not required to provide copies of your User Content to you except as required by applicable Law. You acknowledge and expressly consent to Mindleap, accessing, preserving, and disclosing your Account information and User Content if required to do so by law or if in good faith Mindleap believes that such access, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety or security of Mindleap, or our affiliates, staff, users, or the public.
11.5. Derivative Content. Mindleap owns all intellectual property rights in the content we derive or create from User Content (“Derivative Content”).
11.6. Feedback About Specialists. You acknowledge that after receipt of Specialist Services, you will be prompted to provide a rating (the “Public Rating”) and feedback for the Specialist who provides such Specialist Services. Mindleap may use, share, and display publicly these Public Ratings and feedback you provide, including in Processed form.
Mindleap is not obligated to monitor, censor, edit, or remove Public Ratings or feedback. Mindleap is not liable for any feedback or comments made by Users, even if such feedback or comments are defamatory or legally actionable. You acknowledge and agree that Mindleap is not a publisher of user feedback, ratings, and comments, but is rather a distributor thereof. Mindleap is under no obligation to verify the accuracy of any ratings, feedback, or comments made available on the Services.
11.7. Feedback About the Services and Unwanted Submissions. We welcome any questions, comments or feedback you might have about the Services or this Agreement (“Feedback“). Please refer to the Contact section of the Services for our contact information. That said, the Services are not a secure means of communication and any information or content you supply to us will not be kept confidential. For that reason, you should not submit or send to us any patentable ideas or patent applications, advertising or marketing suggestions, know-how, trade secrets, prototypes or any information, written or oral, which you regard as confidential or commercially sensitive or valuable (collectively referred to as “Unwanted Submissions”). While we value your feedback, you agree not to submit any Unwanted Submissions. We shall not be subject to any obligation of confidentiality nor be liable for any use and/or disclosure of such Unwanted Submissions. You agree we are free to use your Unwanted Submissions as we see fit without any liability owed to you.
11.8. License to Feedback and Submissions. If you provide Feedback, or Unwanted Submissions, you grant Mindleap a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, transferable, and fully sub-licensable right to use, reproduce, publish, distribute, publicly display, publicly perform, translate, adapt, modify, telecommunicate, rent out, commercialize, monetize, and create derivative works from the Feedback or Unwanted Submissions in any way and for any purpose without providing any compensation to you or any other person. You also grant Mindleap the right to use the name you submit with the User Content or Feedback, if any, in connection with Mindleap’s rights hereunder.
11.9. Your Representations; Waiver of Moral Rights. Each time you submit or post Feedback, Unwanted Submissions or User Content, you represent and warrant that any such Feedback, Unwanted Submissions, and User Content you supply to us is and shall be your own original work and has been lawfully provided to us and that you have all necessary consents to provide this to us and that we shall be entitled to disclose your name with any such Feedback, Unwanted Submissions, or User Content that we may choose to publish. Where you are the author of such content, you hereby irrevocably waive all moral rights you may have in any such Feedback, Unwanted Submissions, or User Content. You agree that any personal information you supply with such Feedback, Unwanted Submissions, or User Content may be used by us as described in our Privacy Policy.
12. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT
12.1. Infringing Content. As intellectual property holders ourselves, we respect intellectual property rights holders’ rights and will quickly respond to any claims of infringement reported on the Services. If you find anything on the Services that you believe infringes your copyright or the copyrights of a person you are authorized to represent, please report the alleged infringement to using the procedure set out in our Intellectual Property Infringement Policy. We will terminate the accounts of users who are repeat copyright infringers.
13. ACCURACY OF INFORMATION AND AVAILABILITY OF THE SERVICES
13.1. Reliance on Content. While we strive to include accurate and up-to-date information on the Services, we do not represent, warrant or promise (whether expressly or by implication) that any content or materials are or remain available, accurate, complete and up to date, free from bugs, errors or omissions or fit or suitable for any purpose. Any reliance you may place on the information made available on the Services are at your own risk and we may suspend or terminate operation of the Services at any time at our sole discretion. Content and materials on the Services are provided for your general informational purposes only. Content and materials made available on the Services does not constitute technical, engineering, safety, scientific, financial, medical, health, or legal advice or any other type of advice and should not be relied on for any purposes. You must obtain more specific or professional or clinical advice before taking, or refraining from, any action or inaction on the basis of the Content or materials on the Services.
13.2. Medical Advice Disclaimer. WITHOUT LIMITING SECTION 13.1, CONTENT AND MATERIALS MADE AVAILABLE ON THE SERVICES DOES NOT AND IS NOT INTENDED TO CONVEY MEDICAL, HEALTH, TREATMENT, OR SAFETY ADVICE AND DOES NOT CONSTITUTE THE PRACTICE OF MEDICINE OR THERAPY. YOU SHOULD NOT RELY ON THE CONTENT AND INFORMATION ON THE SERVICES AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL OR CLINICAL ADVICE, DIAGNOSIS, OR TREATMENT. MINDLEAP IS NOT RESPONSIBLE OR LIABLE FOR ANY ACTIONS OR INACTION YOU TAKE PART AS A RESULT OF THE CONTENT OR MATERIALS THAT ARE AVAILABLE ON THE SERVICES OR OTHERWISE COMMUNICATED TO YOU BY US.
13.3. Availability of Services. While we strive to keep the Services available, we do not represent, warrant or guarantee in any way the Services’ continued availability at all times or uninterrupted use by you of the Services.
14. HYPERLINKS AND THIRD-PARTY SITES
14.1. Third Party Websites. The Services may contain hyperlinks or references to third party websites other than the Services. Any such hyperlinks or references are provided for your convenience only. We have no control over third party websites and accept no responsibility or liability for any content, material or information contained in them. The display of any hyperlink and reference to any third-party website does not constitute an endorsement of such third party’s website, products or services. Your use of a third party site may be governed by the terms and conditions and privacy policy of that third party site.
14.2. Third Party Content. The Services may include content provided by third parties, including from other users and third-party licensors. All statements and/or opinions expressed in any such third-party content are solely the opinions and the responsibility and liability of the person providing those materials. Such materials do not necessarily reflect the opinion of Mindleap. Mindleap is not responsible or liable to you or any third party for the content, information, opinions, or accuracy of any third party materials.
15. INDEMNITY
15.1. Indemnity. You will defend, indemnify and hold harmless Mindleap from and against any and all losses, damages, costs, expenses (including legal fees), claims, complaints, demands, actions, suits, proceedings, obligations and liabilities (including settlement payments) arising from any third-party claim or action, resulting from, connected with, or relating to: (a) your use of the Services, its materials, User Content, the Specialist Services, or Content or the other products or services we sell (including those sold through the Services); or (b) your negligence, misconduct, or breach of this Agreement. Notwithstanding the foregoing, Mindleap retains the right to participate in the defense of and settlement negotiations relating to any third party claim, complaint, demand, action, suit or proceeding with counsel of its own selection at its cost and expense.
16. DISCLAIMERS
16.1. Assumption of Risk. YOU ASSUME ALL RESPONSIBILITIES FOR: (A) THE SELECTION OF THE SERVICES, SPECIALISTS, SPECIALIST SERVICES, AND CONTENT TO ACHIEVE YOUR INTENDED RESULTS; (B) THE INSTALLATION OF THE APP; AND (C) THE USE OF, AND RESULTS OBTAINED FROM THE SERVICES AND SPECIALIST SERVICES.
USE OF THE SERVICES, CONTENT, AND MATERIALS AVAILABLE ON THE SERVICES, AND RECEIPT OF SPECIALIST SERVICES, IS AT YOUR SOLE RISK.
16.2. Disclaimer of Warranties.
(a) THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, WITH ALL FAULTS AND DEFECTS AND WITHOUT CONDITION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, MINDLEAP, ON ITS OWN BEHALF AND ON BEHALF OF THE OTHER MINDLEAP PARTIES AND ANY PARTY DISTRIBUTING THE APP TO YOU, INCLUDING VIA A MOBILE APPLICATION STORE, EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES AND CONTENT, INCLUDING ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, MINDLEAP AND THE OTHER MINDLEAP PARTIES PROVIDE NO CONDITION, WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED
(b) THE MINDLEAP PARTIES MAKE NO WARRANTIES OR CONDITIONS REGARDING THE QUALITY, RELIABILITY, TIMELINESS OR SECURITY OF THE SERVICES OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE MINDLEAP PARTIES ASSUME NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OR FAILURE TO STORE OR ACCESS, OR TO STORE OR ACCESS PROPERLY, EMAIL MESSAGES AND ELECTRONIC FILES. YOU ASSUME THE ENTIRE RISK IN DOWNLOADING OR OTHERWISE ACCESSING ANY DATA, FILES, OR OTHER MATERIALS OBTAINED FROM THIRD PARTIES AS PART OF THE SERVICES, EVEN IF YOU HAVE PAID FOR VIRUS PROTECTION SERVICES.
(c) THE ACCESS TO, DOWNLOADING, AND USE OF CONTENT AND MATERIAL FROM THE SERVICES ARE DONE AT YOUR OWN RISK. MINDLEAP MAKES REASONABLE EFFORTS TO ENSURE THAT THE SERVICES ARE VIRUS-FREE, BUT MINDLEAP DOES NOT AT ANY TIME REPRESENT, WARRANT, OR GUARANTEE THAT SUCH CONTENT OR MATERIALS ARE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE CODE. YOU ARE RESPONSIBLE FOR IMPLEMENTING SAFEGUARDS TO PROTECT YOUR COMPUTER SYSTEM (INCLUDING MOBILE DEVICE) AND DATA AND YOU ARE RESPONSIBLE AND LIABLE FOR THE ENTIRE COST OF ANY SERVICE, REPAIRS OR CORRECTIONS NECESSARY AS A RESULT OF THE USE OF THE SERVICES.
(d) MINDLEAP DOES NOT REPRESENT, WARRANT, OR GUARANTEE:
(i) THAT ANY PARTICULAR SPECIALIST OR SPECIALIST SERVICES WILL BE SUITABLE OR APPROPRIATE FOR YOUR NEEDS OR TO ACHIEVE YOUR INTENDED RESULTS.
(ii) THE QUALITY, ACCURACY OR COMPLETENESS OF ANY CLAIMS, STATEMENTS OR INFORMATION ON THE SERVICES;
(iii) THAT THE SERVICES, SPECIALISTS, OR SPECIALIST SERVICES MEET ANY PROFESSIONAL, ETHICAL, OR REGULATORY REQUIREMENTS;
(iv) THE QUALITY, ACCURACY OR COMPLETENESS OF THE PRODUCTS AND SERVICES YOU OBTAIN THROUGH THE SERVICES; OR
(v) THE SUITABILITY OF ANY OF THE INFORMATION, CONTENT, OR OTHER PRODUCTS OR SERVICES CONTAINED ON THE SERVICES OR OBTAINED THROUGH THE SERVICES FOR ANY PURPOSE.
16.3. Risk of Exposure. YOU ACKNOWLEDGE AND AGREE THAT SHARING CONTENT ONLINE AND HOSTING DATA ONLINE INVOLVES RISKS OF UNAUTHORIZED DISCLOSURE OR EXPOSURE AND THAT, IN USING THE SERVICES, YOU ASSUME SUCH RISKS. Mindleap offers no representation, warranty, or guarantee that your personal information will not be exposed or disclosed through errors or the actions of third parties.
16.4. Interactions with Other Users. You are solely responsible and liable for your transactions or other interactions, either through the Services or through other means of communication, with other Users, including Specialists. You acknowledge that that Mindleap has no liability for any such interactions. Mindleap may monitor or become involved in disputes between you and other users of the Services but has no obligation to do so.
17. LIMITATION OF LIABILITY
17.1. Dollar Cap. WITHOUT LIMITING SECTION 17.2, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE MINDLEAP PARTIES UNDER OR IN RELATION TO THIS AGREEMENT, THE SERVICES, CONTENT, SPECIALIST SERVICES, OR THIS AGREEMENT’S OTHER SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE LESSER OF: (A) $1000; OR (B) THE AGGREGATE OF ANY FEES PAID BY YOU THROUGH THE SERVICES IN THE TWO MONTH PERIOD PRECEDING THE CLAIM (OR IF YOU USED THE SERVICES ON A FREE BASIS, THEN OUR LIABILITY WILL NOT EXCEED $10.00 CAD).
17.2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE MINDLEAP PARTIES BE LIABLE UNDER OR IN RELATION TO THIS AGREEMENT, THE SERVICES, CONTENT, SPECIALIST SERVICES, OR THIS AGREEMENT’S OTHER SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE, OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA, OR SYSTEM SECURITY; OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER THE MINDLEAP PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
APPLICABLE LAW IN SOME JURISDICTIONS MIGHT NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION OF LIABILITY MIGHT NOT APPLY TO YOU IF YOU LIVE IN SUCH A JURISDICTION AND APPLICABLE LAW IN YOUR JURISDICTION DOES NOT ALLOW MINDLEAP TO LIMIT OR EXCLUDE ITS LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH JURISDICTIONS, MINDLEAP’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
18. RELEASE
18.1. Release. If at any time you have a dispute with any other user of the Services (including Specialists), you hereby release Mindleap from all claims, demands, liabilities, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
18.2. TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
19. RELIANCE
19.1. Reliance. You understand and agree that we are making the Services available to you in reliance upon the, indemnities, disclaimers, limitations and exclusions of liability, and release, set forth in Sections 15 to 18 and that the same form an essential basis of the contract between you and us. You agree that the indemnities, disclaimers, limitations and exclusions of liability, and release set forth in Sections 15 to 18 will survive, and continue to apply in the case of a fundamental breach or breaches of, the failure of essential purpose of contract, the failure of any exclusive remedy or the termination, suspension, or cancellation of your Account or suspension or termination of use of, or access to, the Services.
20. GOVERNING LAW
20.1. Governing Law. The Services and this Agreement are governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without giving effect to: (a) any choice or conflict of law provision, principle or rule and notwithstanding your domicile, residence or physical location; or (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods.
21. DISPUTES & BINDING ARBITRATION
21.1. Arbitration. If the courts in your province, state, or country will not permit you to consent to binding arbitration, then any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted exclusively in the courts of the Province of British Columbia, Canada, and you irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Otherwise, you agree that in the event of any dispute between you and Mindleap arising out of or relating to this Agreement, the Services, the Services’ Contents or materials, or the relationship between Mindleap and you, that you and Mindleap shall consult and negotiate with each other and, recognizing your mutual interests, attempt to reach a solution satisfactory to both you and Mindleap. If you and Mindleap do not reach settlement within a period of 60 days, then such dispute will be referred to and finally resolved by mandatory and binding arbitration administered by the Vancouver International Arbitration Centre (“VanIAC”) pursuant to its applicable Rules.
The place of arbitration will be Vancouver, British Columbia, Canada. The number of arbitrators will be set to one unless otherwise required by the Rules. The language of the arbitration will be English. The existence and content of the arbitration proceedings, including documents submitted by the parties, correspondence to and from the British Columbia International Commercial Arbitration Centre, correspondence to and from the arbitrator, and orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party (except for professional advisors) without the express written consent from the other party unless: (a) (i) the disclosure to the third party is reasonably required in the context of conducting the arbitration proceedings; and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein; or (b) such disclosure is required by applicable Law.
The parties agree that they will not appeal any arbitration decision to any court.
21.2. You may opt out of the above arbitration clause. If you opt out, then neither you nor we will be able to require the other to participate in arbitration for the purposes of resolving any dispute, claim or controversy between you and Mindleap arising out of or relating to this Agreement, the Services, the Services’ Content or materials, or the relationship between Mindleap and you. To opt out, you must, within 30 days of accepting this Agreement, deliver to Mindleap a clear written statement indicating that you wish to opt out of the arbitration provisions in this Agreement. The statement must contain: (a) your name; (b) your mailing address; (c) your telephone number; (d) your email address; and (e) your Account name (if any). The opt-out statement must be delivered to the following address:
Mindleap Health Inc.
6th Floor, 905 W Pender Street
Vancouver, British Columbia, Canada
V6C 1L6
If you opt out of the arbitration clause in the manner provided above, then you irrevocably agree that the courts of British Columbia will have exclusive jurisdiction to settle any dispute, claim, or controversy arising out of or related to this Agreement, the Services, the Services Content or materials, or the relationship between Mindleap and you.
21.2. Waiver of Class Action and Jury Trial. You hereby agree to waive any right you may have to commence or participate in any class action against Mindleap related to any claim and, where applicable, you also agree to opt out of any class proceedings against Mindleap. Where applicable, if a dispute arises between us and you, you hereby waive any right you may have to participate in a trial by jury with respect to that dispute.
22. TERM & TERMINATION
22.1. Term. The term of this Agreement commences on the date you accept this Agreement in accordance with its terms.
22.2. Termination. Either party may terminate this Agreement for any reason at any time. You may terminate this Agreement by closing your Account. Mindleap may terminate by notifying you in writing including without limitation via text to your device or email to you and closing your Account.
22.3. Effects of Termination. Upon termination of this Agreement:
(a) you shall cease using the Services;
(b) all rights, licenses, consents, and authorizations granted by Mindleap to you under this Agreement will immediately terminate (which for certainty includes all Content Licenses); and
(c) you will remain responsible for paying any accrued but unpaid fees or other amounts owed under this Agreement.
22.4. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination of this Agreement, will survive any termination of this Agreement: Sections 1.2, 1.5, 2.2, 2.3, 2.6, 3.5, 4.4, 4.7, 8, 9, 10.8, 10.9, 10.10, 10.11, 11, 12, 13.1, 13.2, 14, 15, 16, 17, 19, 21, 22.3, 22.4, and 24.
23. DEFINITIONS & INTERPRETATION
23.1. Definitions. In this Agreement, the following terms have the following meanings:
(a) “Affiliate” means a Person directly or indirectly controlled, controlling, controlled by, or under common control with Mindleap. “control” for the purpose of this definition shall mean, with respect to any person or entity, the right to exercise or cause to be exercised at least fifty per cent (50%) of the voting rights in such Person.
(b) “User Data” means all information processed or stored through the Services in respect of Users or on a User’s behalf, and includes Your Data. User Data does not include payment records, credit cards or other information Users use to pay Mindleap or Specialists.
(c) “De-Identified Data” means User Data with the following removed: information that identifies or could reasonably be used to identify an individual person, a household, or User.
(d) “Law” means any statute, ordinance, regulation, rule, code, constitution, treaty, common law, court order, writ, judgment, award, or determination, or other requirement or rule of law of any governmental authority.
(e) “Legal Claim” means, in respect of Content, any allegation, claim, complaint, or determination that: (i) the Content infringes third-party intellectual property rights; (ii) the Content violates any other third-party rights; or (iii) the Content violates applicable Law.
(f) “Mindleap Parties” means Mindleap, its Affiliates and its and their respective employees, agents, officers, directors, third-party licensors, service providers, successors, and assigns.
(g) “Person” means an individual, corporation, company, limited liability company, body corporate, partnership, joint venture, governmental authority, unincorporated organization, trust, association or other entity
(h) “Process” means to take any action or perform any operation or set of operations that the Services are able to take or perform on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
(i) “use” means use or access, as applicable.
23.2. Interpretation. For the purposes of this Agreement: (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) unless the context otherwise requires, words in the singular include the plural and those in the plural include the singular.
24. GENERAL
24.1. Force Majeure. No delay, failure, or default on the part of Mindleap will constitute a breach of this Agreement to the extent caused by: (a) acts of war, terrorism, invasion, riots or other acts of civil unrest; (b) hurricanes, earthquakes, pandemic, epidemic, flood, fire, tsunami, solar flare, electro-magnetic pulse, explosion, other acts of God or of nature; (c) strikes or other labor disputes; (d) national or regional emergency; (e) passage of Law or any action taken by a governmental or public authority, including imposing an embargo, workplace shutdown or staffing restrictions, health order, export or import restriction, quota or other restriction or prohibition, or any complete or partial government shutdown; (f) national or regional shortage of adequate power or telecommunications or transportation facilities; or (g) other causes beyond Mindleap’s reasonable control.
24.2. No Third-Party Beneficiaries.
(a) Except as set forth in Paragraph 24.2(b), the parties do not confer any legal, equitable or other rights or remedies of any nature whatsoever under or by reason of this Agreement upon any person other than the parties to this Agreement and their respective successors and permitted assigns.
(b) The parties hereby designate each of the Mindleap Parties as third-party beneficiaries of Sections 16 and 17 having the right to enforce those Sections. The parties hereby designate the third-party licensors of Content as third-party beneficiaries of this Agreement in respect of the terms of this Agreement that pertain to their respective Content and in respect of their intellectual property rights in and to such Content.
24.3. Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, franchise, or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
24.4. No Waiver. The failure of Mindleap to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by you.
24.5. Headings. The headings used in this Agreement are included for convenience only and will not limit or otherwise affect this Agreement.
24.6. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
24.7. Assignment. We may assign this Agreement in part or in their entirety, including our rights, interests, and obligations hereunder, without notice to you or your consent. This Agreement is personal to you and you may not assign this Agreement nor your rights, interests, or obligations under this Agreement to any Person without our express written consent.
24.8. Entire Agreement. This Agreement, together with our Privacy Policy, Additional Terms (if any), and any other agreement incorporated by reference, constitutes the sole and entire agreement between you and Mindleap regarding the subject matter herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
24.9. Language. The parties acknowledge that they have required that the Agreement and all related documents be prepared in English. Les parties reconnaissent avoir exigé que les présentes modalités de vente et tous les documents connexes soient rédigés en anglais.
24.10. Enurement. This Agreement will enure to the benefit of and be binding upon the parties to this Agreement and their respective successors, heirs, and permitted assigns.
24.11. Equitable Relief. You hereby acknowledge and agree that any breach by you of this Agreement would result in harm to Mindleap, and that Mindleap could not be adequately compensated for such harm by monetary award. Accordingly, you hereby agree that in the event of any such breach, in addition to all other remedies available to Mindleap at law or equity, Mindleap will be entitled as a matter of right, and without posting bond or proving damages, to, notwithstanding Section 21, apply to any court of competent jurisdiction for such equitable relief by way of restraining order, injunction, decree or otherwise as may be appropriate to ensure compliance by you with this Agreement.
24.12. Consumer Rights. Nothing in this Agreement affects consumer rights that, pursuant to applicable law, cannot be limited or waived.
24.13. Notice. We may give you notice by text to your mobile device or at the email address (or if no email address, other contact information) registered to your Account or at your last known address. Except as otherwise stated herein, you may only give us notice by letter at:
Mindleap Health Inc.
6th Floor, 905 W Pender Street
Vancouver, British Columbia
V6C 1L6
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