Effective Date: November 30, 2020
IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE WEBSITE AND PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE “SERVICES”) OF DIGITAL MIND STATE, INC. AND ITS AFFILIATES (“DIGITAL MIND STATE”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS, WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
BY ACCESSING OR USING OUR WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS. IF NOT, PLEASE DO NOT USE OR ACCESS OUR WEBSITE. YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) 18 YEARS OF AGE OR (ii) THE LEGAL AGE TO FORM A BINDING CONTRACT IN YOUR JURISDICTION, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE, OR ANY OF THIS WEBSITE’S CONTENTS, GOODS, OR SERVICES BY APPLICABLE LAW.
- PRIVACY STATEMENT INCORPORATED. We have posted a Privacy Statement which governs data collection, storage and use. This Statement is incorporated into these Terms. We encourage you to review the Statement.
- CHANGES TO OUR WEBSITE. You agree and understand that our Website including, all content and sponsored content, may be modified or discontinued at any time, in our sole discretion, without prior notice. All changes are subject to these Terms.
- OWNERSHIP OF INTELLECTUAL PROPERTY. All text, graphics interfaces, photographs, trademarks, logos, sounds, music, artwork, computer code, and content (collectively “Content”) published on the Website is protected by applicable intellectual property laws and is owned or licensed by Digital Mind State or its licensors.
- LICENSE TO USE AND COPY. We grant you a limited license to make personal use of content on our Website. This license does not include: (a) any resale or commercial use of content on our Website; (b) the collection and use of any product listing or description on our Website; or (c) use of any data mining, robots, or similar data gathering and extraction methods on our Website.
- RESTRICTIONS ON YOUR USE OF OUR WEBSITE. Without limiting the generality of any other provisions of these Terms, you agree that you will not use, and will not permit any End User to use, the Services to: (i) modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of the Services; (ii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts Digital Mind State’s networks, your Accounts, or the Services; (iii) engage in activity that is illegal, fraudulent, false, or misleading, (iv) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (v) build or benchmark a competitive Product or Service, or copy any features, functions or graphics of the Services; or (vi) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation; (vii) upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of Digital Mind State or other users of Services; (viii) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or Digital Mind State’s security systems. (ix) use the Services in violation of any Digital Mind State policy or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings, and you agree that you are solely responsible for compliance with all such laws and regulations.
- DMCA NOTICE. If you believe that any item or content on our Website infringes your copyright, you should send written notice of copyright infringement to our designated copyright agent at the address given below. Your notice must meet the requirements of the Digital Millennium Copyright Act (as required under 17 U.S.C. §512) by providing the following information:
- A description of the copyrighted work that you claim has been infringed;
- A description of where the alleged copyrighted work is located on our Website;
- Your name, address, telephone number and email address;
- A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
- A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the owner of the copyright at issue or are authorized to act on the copyright owner’s behalf.
- DISCLAIMER. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED “AS IS” AND DIGITAL MIND STATE, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DIGITAL MIND STATE, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT THE SERVICES WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. DIGITAL MIND STATE DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. DIGITAL MIND STATE CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. USE IS AT YOUR OWN RISK.
- LIMITATION ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DIGITAL MIND STATE OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF DIGITAL MIND STATE, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, DIGITAL MIND STATE’S, ITS AFFILIATES’, SUPPLIERS’ AND RESELLERS’ MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you.
- DISCLAIMER OF ADVERTISEMENTS AND LINKS TO THIRD PARTY WEBSITE. We may display advertisements from third parties on our Website. These advertisements may be in the form of a sponsored content article, banner, link, pop-under or pop-up ad. We are not responsible for the content of such advertisements or links, or for any products, services or other materials relating to such advertisements or any click through or linked website. We are paid only for the display of the advertisement and the display or link does not represent or imply that we endorse such products, services or Website. IN NO EVENT WILL WE BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANYONE FOR ANY DAMAGE, INCLUDING COMPENSATORY OR PUNITIVE OR ANY LOSS ARISING FROM OR RELATING TO SUCH ADS, LINKS OR WEBSITE.
- AGREEMENT TO ARBITRATE; WAIVER OF CLASS ACTION. If you are located in the United States, you agree that should there be any dispute between the Parties concerning the interpretation of this Agreement or concerning an alleged breach of this Agreement, which the Parties are unable to resolve after consultation with each other and/or mediation, such dispute shall be settled by binding arbitration in Los Angeles, California, U.S.A., administered by the American Arbitration Association under its Commercial Arbitration Rule. The parties will agree on one arbitrator within thirty (30) calendar days of receipt of the notice of intent to arbitrate. If no arbitrator is appointed within the time herein provided, or any extension of time which is mutually agreed upon, the American Arbitration Association will make such appointment within thirty (30) calendar days of such failure. The arbitrator will allow such discovery as is appropriate, consistent with the purpose of arbitration in accomplishing fair, speedy and cost-effective resolution of disputes. The award rendered by the arbitrator will include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses and judgment on such award may be entered in any court having jurisdiction thereof. Nothing in this Agreement will be deemed as preventing either party from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the parties and the subject matter of the dispute. The parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or any other proceeding in which any party acts or proposes to act in a representative capacity.
- CHOICE OF LAW AND FORUM. This Agreement shall be governed by and construed under the laws of the State of California, U.S.A., as applied to agreements entered into and to be performed in California by California residents. The Parties consent to the exclusive jurisdiction and venue of the state courts located in and serving Los Angeles County, California and the federal courts in the Central District of California.
- WAIVER AND SEVERABILITY. The waiver of a default hereunder by one party may be effected only by a written acknowledgment signed by the other party and shall not constitute a waiver of any other default. The failure of any party to enforce any right or remedy for any one default shall not be deemed a waiver of said right or remedy if the Party persists in such default or commits any other default, nor shall such failure in any way affect the validity of this Agreement or any part hereof. The provisions of this Agreement are severable and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof. The unenforceable or invalid provision shall be modified as to be enforceable or valid or stricken from this Agreement.