TERMS AND CONDITIONS
THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. PLEASE READ THEM CAREFULLY, SINCE THEY AFFECT YOUR LEGAL RIGHTS.
A. Disclaimer and Release of Liability, Waiver and Assumption of Risk: The Services, together with the features, functionality, components, contents, and other materials contained therein, including without limitation the Sessions themselves, shall not constitute the provisioning of medical care and are not intended to be, and may not be used as, a substitute for professional medical advice, diagnosis, or treatment.
The hypnobreathwork contained in the Sessions is deeply experiential and can result in intense, energetic, physical and emotional releases. Therefore, it is not advised for persons (i) with a history of cardiovascular disease, including angina or heart attack, high blood pressure, use of a pace-maker, glaucoma, retinal detachment, osteoporosis, significant recent physical injuries or surgery; (ii) with mental illness or seizure disorders; (iii) having been prescribed major medications; or (iv) with a personal or familial history of aneurysms. In addition, the following persons are advised against participating in the Sessions without first consulting and getting approval from their primary care physicians regarding the practice of hypnobreathwork: (x) pregnant women, and (y) persons with asthma (who should also be sure to utilize their inhaler accordingly and have on hand during selected Sessions.
In consideration of being permitted to use the Services and participate in any way in hypnobreathwork contained in the Sessions, you the user, hereby acknowledge, understand and expressly agree, on behalf of yourself, your spouse, minor children, wards, relatives or other persons under your care, next of kin, heirs, assigns, agents, personal representatives and estate (collectively, the “Releasing Parties”) as follows:
SUBSCRIBER LIABILITY WAIVER
THE RELEASING PARTIES HEREBY EXPRESSLY RELEASE, INDEMNIFY, AND HOLD HARMLESS MASTRY, ITS EMPLOYEES, DIRECTORS, OFFICERS, TEAM MEMBERS, OWNERS, PRINCIPALS, BUSINESS PARTNERS, AFFILIATES, CONTRACTORS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE “MASTRY RELEASEES”) WITH RESPECT TO ANY AND ALL INJURY, WHETHER PHYSICAL, MENTAL, PSYCHOLOGICAL OR EMOTIONAL, OR ANY LOSS OR DAMAGE TO PERSON OR PROPERTY OF ANY KIND, WHETHER ARISING FROM THE NEGLIGENCE OF MASTRY RELEASEES OR OTHERWISE, TO THE FULLEST EXTENT PERMITTED BY LAW.
You know, understand and acknowledge that Mastry Releasees are NOT physicians, psychologists, therapists or healthcare professionals, and the activities being offered are NOT intended to treat or diagnose, and does NOT include treatment for or diagnosis of, any illnesses, disease or disorders whether physical, mental, psychological or emotional.
You promise, represent and certify that you are in good health physically, mentally, psychologically and emotionally, and fully understand and acknowledge that if you were not in such good health, you would not be permitted to partake in the activities, and the foregoing constitutes a material terms upon which Mastry Releasees are relying in permitting you to partake in the activities.
You agree to comply with the stated and customary guidance and norms of participation in the activities. If, however, you observe any unusual hazard during your presence or participation, you will immediately remove yourself from participation in the activities and bring such attention to the nearest official forthwith.
IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You further expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the Mastry Releasees pertaining to the subject matter hereunder. If you are a resident of the United Kingdom or European Union, this release shall not apply to any damage arising from our willful misconduct or gross negligence, nor shall it apply to damage from injury to life, body or health.
B. Authorized Use of the Services: Our Services are provided for your personal use and for informational purposes only. Any other use of the Services requires the prior written consent of Mastry.
C. Amending this Agreement: Mastry may update or revise this Agreement (including any related Mastry policies) from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. If you do not agree to the terms of this Agreement or any modified version of this Agreement, you must terminate your use of the Services
D. Eligibility: You represent and warrant that you are at least 18 years of age. If you are under the age of 18, you may not use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change the eligibility criteria for the Services at any time. We reserve the right to terminate Accounts (as defined below) for users who have been previously suspended or removed from the Services, or to terminate Accounts for users who do violate this Agreement. You are solely responsible for ensuring that you are in compliance with this Agreement and with all laws, rules and regulations applicable to you, and the right to access the Services is revoked where this Agreement or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.
E. Technical Requirements: To enjoy Mastry via your computers, smart phones and tablets (each, your “Device”), your Device must satisfy certain system requirements. Use of the Services requires Internet access through your Device(s). You are responsible for all mobile carrier data or text message charges resulting from your use of the Services, including from any notifications, authentications, verifications provided by the Services. In order to use the text message based Services, including any live chat options which may become available, you must expressly consent to receiving text messages from us and thereafter maintain an active Account with a carrier of electronic communications through Devices. Mastry does not guarantee that the Services will be compatible with all Devices or will be supported by all mobile carriers. Other Device requirements can be found on the Website and the Google, Apple and Amazon App marketplaces.
F. Membership and Account Registration: To utilize and benefit from the Sessions, you must register for an account via the Services (each, an “Account”), to become a registered user of the Services (a “Member”) either by (i) providing your email address and a password; (ii) using mobile verification; or (iii) by logging in through another supported authentication mechanism (a “Third Party Account”). You must provide accurate and complete information and keep your Account information updated. You are responsible for maintaining the confidentiality of your Account, password and other User Information (as defined below) and for restricting access to your device(s) which are used to access the Services including but not limited to computers, smart phones and tablets (each, your “Device”). You are responsible for updating your User Information.
You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a username a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account and for keeping your Account password secure. You may never use another person’s Account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services, breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account.
By registering for an Account and the Services, you warrant that: (i) You are legally capable of entering into binding contracts; (ii) All registration information you submit is truthful and accurate; (iii) You will maintain the accuracy of such information; and (iv) Your use of the Services does not violate any applicable law or regulation.
As a Member you will receive access to certain sections, features and functions of the Services that are not available to non-members. By agreeing to become a Member you may receive occasional special offer, marketing, and survey communication emails with respect to the Services. You can easily unsubscribe from Mastry commercial emails by following the opt-out instruction in these emails.
G. Subscriptions: Account holders may access the Services via a subscription fee-based program, which gives access to all content within the Services. You will only have access to view the Sessions while your paid subscription is active and subsisting. You may have access to a free 3-day trial subscription, which automatically converts to a paid annual or monthly subscription term after a certain period of time. In such instances, you can disable the automatic conversion by following the cancellation instructions set forth in Section G prior to the date of conversion.
For the purposes of our monthly and yearly subscriptions, a month constitutes 30 calendar days and a year constitutes 365 calendar days.
Our “Monthly” subscription is paid in monthly installments. For each month that your monthly subscription is active, you acknowledge and agree that Mastry is authorized to charge the same credit card as was used for the initial subscription fee or other payment method as set forth in Section G (the “Payment Method”). The monthly renewal subscription fees will continue to be billed to the Payment Method you provided until cancelled. You must cancel your subscription before it renews in order to avoid billing of the next month’s subscription fee to the Payment Method you provided. Refunds cannot be claimed for any partial-month subscription period. You may access Mastry VIP via a monthly subscription option.
Our “Yearly” subscription is paid for by an upfront payment with automatic annual renewals. You acknowledge and agree that Mastry is authorized to charge the Payment Method used for (i) the initial annual subscription fee at the rate secured at the time of purchase, and (ii) the non-discounted renewal subscription fee(s). You must cancel your subscription before it renews in order to avoid billing of the renewal subscription fee to the Payment Method you provided. Refunds cannot be claimed for any partial subscription period.
Accounts and subscriptions are not transferable and therefore you agree to not sell, transfer, or exchange Accounts or subscriptions in any way or under any circumstance, including for commercial purposes. This expressly applies to any discounted, subsidized, or free Accounts or subscriptions.
H. Fees: Our obligation to provide the Services only comes into being when you provide your Payment Method to enroll for one of the above-mentioned subscription options in the App (your “Order”), and we confirm your subscription purchase to you either in-App or by email. Please quote the Order number or date, as applicable, in all subsequent correspondence with us. You agree not to hold us responsible for banking charges incurred due to payments on your Account. If payment is not received by us from the Payment Method you provided, you agree to pay all amounts due upon demand by us. You are responsible for all applicable fees and charges incurred, including applicable taxes, and all subscriptions purchased by you.
We use a third-party payment processor (the “Payment Processor”) to bill you when your use of the Services results in charges to your Payment Method, including any in-App upgrades to your subscription you may select from time to time. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for errors made by the Payment Processor. By making a subscription selection, you also agree to pay any applicable processing fees. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.
You agree to promptly notify Mastry of any changes to the Payment Method you provided while any subscriptions remain outstanding. In the course of your use of the Services, Mastry and its Payment Processor may receive and implement updated credit card information from your credit card issuer in order to prevent your subscription from being interrupted by an outdated or invalid card. This disbursement of the updated credit card information is provided to Mastry and Mastry’s Payment Processor at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt-out of the update service. Should you desire to do so, please contact your credit card issuer.
I. Promotional Codes and Sales: Depending on your country of residency, Mastry may from time to time offer promotional codes, seasonal sales and other discounted Service and/or subscription options (collectively, the “Promotions”). Additional terms may apply to these Promotions (collectively, “Promotional Terms”) and you agree that you will review such Promotional Terms. You are free to decide whether or not to accept such Promotional Terms, but accepting such Promotional Terms, is required for you to avail yourself of the related Promotions and selecting and using such Promotions will be deemed as your express acceptance of such Promotional Terms.
Any promotion code or offer provided by us may not be used in conjunction with any other promotion code or offer, past or present, except where expressly stated otherwise. Introductory offers are only available to new users of the Services, except where expressly stated otherwise. Previous users or trial users of the Services do not qualify as new users. Unless otherwise set forth in the terms of any promotion, all pricing promotions or discounts will apply to the initial period of the subscription, and any renewals will be charged at the non-discounted rate for the type of subscription purchased.
J. Cancellation of Services:
- If you purchase your subscription via a third party app provider, you may cancel your subscription (or renewal thereof) at any time solely via the same app provider, pursuant to the cancellation policies of such third party app provider. For subscriptions purchased via our App, you may cancel a monthly or yearly subscription at any time by going here. You will not receive a refund for the fees you already paid for your current subscription period and you will continue to receive the Services ordered through the end of your paid Subscription period.
- We may suspend or terminate your use of the Products at any time as a result of your fraud or breach of any obligation under these Terms. Such termination or suspension may be immediate and without notice. A breach of these Terms, includes without limitation, the unauthorized copying or download of our audio or video content from the Products.
K. Rules of Conduct for using the Services:
- As a condition of use, you promise not to use the Services for any purpose that is prohibited by this Agreement. You are responsible for all of your activity in connection with the Services.
- Without limiting the generality of anything herein, in no event shall you record, attempt to record or permit any third party to record any Sessions for resale, distribution or any other purpose, nor shall you play, utilize or otherwise distribute any Session to any third party.
- You shall not (and shall not permit any third party to) either (1) take any action, or (2) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Service, including without limitation any User Content (as defined below), that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty (see our DMCA Copyright Policy below); (ii) is known by you to be false, misleading, untruthful or inaccurate; (iii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, references illegal activity, false advertising, health code violations, or purposeful overcharging, or is otherwise inappropriate as determined by us in our sole discretion; (iv) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”); (v) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party; (vi) seeks to circumvent any of the prohibitions contained in this Agreement, (vii) impersonates any person or entity, including any of our employees or representatives; or (viii) includes anyone’s identification documents or sensitive financial information.
- You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the websites; (vi) harvest or scrape any content from the Services; (vii) use any portion of the Services or the Mastry content to provide, or incorporate any portion of the Services or Mastry content into, any product or service provided by a third party; (viii) modify any Services or Mastry content or create any derivative products from any of the foregoing, or (ix) otherwise take any action in violation of our guidelines and policies.
- You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of the Services; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder.
- You shall abide by all applicable local, state, national and international laws and regulations, and you may not use any of the Services or Mastry content for any illegal purpose.
- We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests; or (v) protect the rights, property or safety of us, our users and the public.
L. Proprietary Rights: Mastry is the owner of or otherwise licensed to use all parts of the Services, including all copy, software, graphics, designs and all copyrights, trademarks, service marks, trade names, logos, and other intellectual property or proprietary rights contained therein. Some materials on the Services belong to third parties who have authorized Mastry to display the materials, such as Coaches and other certain third-party licensors. By using the Services, you agree not to copy, distribute, modify or make derivative works of any materials, whether in whole or in part, without the prior written consent of the owner of such materials. Except as expressly set forth in this Agreement, no license is granted to you and no rights are conveyed by virtue of accessing or using the Services. All rights not granted under this Agreement are reserved by Mastry, and Mastry together with its licensors retain all rights in the Services and any associated patents, trademarks, copyrights, trade secrets and other intellectual property rights.
M. No Ideas Accepted: We do not accept any unsolicited ideas to our Services from outside the company, including, without limitation, suggestions about advertising or promotions, merchandising of any products, additions to our services, or changes in methods of doing business. We may already be working on or may in the future work on a similar idea. This policy eliminates concerns about ownership of such ideas. If, notwithstanding this Agreement, you submit an unsolicited idea, you understand and acknowledge that such idea is not submitted in confidence and we assume no obligation, expressed or implied, by considering it. You further understand that we shall exclusively own all known or hereafter existing rights to the idea everywhere in the world, and that such idea is hereby irrevocably assigned to us. Without limiting the foregoing, to the extent any such assignment is deemed unenforceable, and or to the extent necessary for Mastry to utilize your submission, you hereby grant Mastry an irrevocable, perpetual, world-wide license to use the idea and any associated intellectual property in any manner, in any medium now known or hereafter developed, without compensation to you.
N. Third Parties: Please note that Mastry does not provide, endorse, or guarantee any third-party product, services or information that may be featured within the Services and/or during any of the Sessions, and disclaims any liability arising therefrom. In addition, the Services may contain links to other websites or apps that not maintained by us. Other websites and apps may also reference or link to our Services. We encourage you to be aware when you leave our Services and to read the terms and conditions and privacy statements of each and every website and apps that you visit. We are not responsible for the practices or the content of such other websites and apps.
O. No Warranties: WHILE MASTRY USES REASONABLE EFFORTS TO INCLUDE UP-TO-DATE INFORMATION ON THE SERVICES, EXCEPT FOR THE EXPRESS WARRANTIES STATED THROUGH OUR SERVICES, MASTRY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF INFORMATION IN THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, INCLUDING ALL CONTENT MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICES, IS PROVIDED “AS IS” AND MASTRY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE CONTENT ON THE SERVICES. FURTHER, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, MASTRY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MASTRY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULLEST EXTENT PERMITTED BY LAW, MASTRY SHALL NOT BE LIABLE FOR THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN.
IN NO EVENT WILL MASTRY BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST DATA, LOST OPPORTUNITIES, COSTS OF COVER, EXEMPLARY, PUNITIVE, PERSONAL INJURY/WRONGFUL DEATH, SPECIAL, INCIDENTAL, INDIRECT OR OTHER CONSEQUENTIAL DAMAGES. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL MASTRY BE LIABLE FOR ANY DIRECT DAMAGES EXCEEDING THE GREATER OF THE FEES YOU PAID TO MASTRY FOR SERVICES IN THE TWELVE MONTHS PRECEDING THE CLAIM OR ONE HUNDRED UNITED STATES DOLLARS.
P. User Content:
- Comments or materials posted by you. Certain parts of the Services may allow you to post text comments, photos, videos or other content (“User Content”). Unless otherwise specified, you may only post User Content if you are a resident of the United States and are eighteen (18) years of age or older. You may only post User Content that you created or which the owner of the User Content has given you permission to post. If User Content depicts any person other than yourself, you must have permission from that person or, if that person is a minor, permission from that person’s parent or legal guardian, before you post the User Content. You may be required to provide proof of such permission to Mastry. You may not post or distribute User Content that is illegal or that violates this Agreement. By posting or distributing User Content, you represent and warrant that (a) you own all the rights to the User Content or are authorized to use and distribute the User Content and (b) the User Content does not and will not infringe any copyright, right of publicity, or any other third-party right nor violate any law or regulation. By submitting or posting User Content, you grant Mastry the irrevocable, perpetual, worldwide right to reproduce, display, perform, distribute, adapt, and promote this User Content in any medium. Once you submit or post User Content , Mastry does not need to give you any further right to inspect or approve uses of such User Content or to compensate you for any such uses. Mastry owns all right, title, and interest in any compilation, collective work, or other derivative work created by Mastry using or incorporating User Content posted. You are solely responsible for anything you may post and the consequences of posting anything.
- Comments or materials posted by others. Under no circumstances will Mastry be liable in any way for any content or materials of any third parties, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Mastry does not pre-screen content, but that Mastry and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available. Without limiting the foregoing, Mastry and its designees will have the right to remove any content, including without limitation User Content, that violates this Agreement or is deemed by Mastry, in its sole discretion, to be otherwise objectionable. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any content or communications posted or endorse any opinions expressed therein. You understand that by using the Services, you may be exposed to content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will Mastry be liable in any way for any content, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted or otherwise made available on the Services or broadcast elsewhere.
- Digital Millennium Copyright Act ("DMCA") Notice: Materials may be made available through the Services by users and other third parties not within our control. We are under no obligation to, and do not, scan content posted on the Services for the inclusion of illegal or impermissible content. However, we respect the copyright interests of others. It is our policy not to permit materials known by us to infringe another party’s copyright to remain on the Services. If you believe any materials infringe a copyright, you should provide us with written notice that at a minimum contains: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website; (iii)identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (v) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. All DMCA notices should be sent to our designated agent as follows: Copyright Agent 3921 Alton Road, Suite 413, Miami Beach, FL 33140.
Q. Third-Party Websites, Applications and Services: The Services may contain hypertext links to websites and applications operated by parties other than Mastry. Such hypertext links are provided for your reference only, and Mastry does not control such websites and is not responsible for their content. Mastry’s inclusion of any hypertext links to such websites or applications does not imply any endorsement of the material on such websites or applications or any association with their operators. Mastry assumes no liability whatsoever for any such third-party websites, applications or any content, features, products, or services made available through such third-party websites or applications. Additionally, Apple Inc., Google, Inc., or Microsoft Corporation will be a third-party beneficiary to this contract if you access the Services using applications developed for Apple iOS, Android or Microsoft Windows -powered mobile devices, respectively. These third party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third party beneficiary's terms of service, including any license transferability and other usage rules therein.
R. Export Control: You may not use, export, or re-export any of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
S. Indemnification: You agree to indemnify, defend and hold harmless Mastry, its employees, directors, officers, agents, business partners, affiliates, contractors (including the Coaches), distribution partners and representatives (the “Mastry Parties”) from and against any and all claims, demands, liabilities, costs or expenses, including attorney’s fees and costs, arising from, or related to (i) your use of the Services, (ii) any breach by you of any of the terms set forth in this Agreement, and (iii) any violation of applicable law.
T. Severability: If any part of this Agreement shall be held or declared to be invalid or unenforceable for any reason by any court of competent jurisdiction, such provision shall be ineffective but shall not affect any other part of this Agreement, and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
U. Waiver; Remedies: The failure of Mastry to partially or fully exercise any rights or the waiver of Mastry of any breach of this Agreement by you shall not prevent a subsequent exercise of such right by Mastry or be deemed a waiver by Mastry of any subsequent breach by you of the same or any other term of this Agreement. The rights and remedies of Mastry under this Agreement and any other applicable agreement between you and Mastry shall be cumulative, and the exercise of any such right or remedy shall not limit Mastry's right to exercise any other right or remedy.
V. Governing Law; Dispute Resolution; Arbitration: The laws of the State of Florida shall govern this Agreement. While we will make reasonable efforts to resolve any disagreements you may have with Mastry, if these efforts fail you agree that all claims, disputes or controversies against Mastry arising out of this Agreement, or the purchase of any products or services ("Claims") are subject to fixed and binding arbitration (except for matters that may be taken to small claims court), no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; and Claims made independently or with other claims. The party filing an arbitration must submit Claims to the American Arbitration Association and follow its rules and procedures for initiating and pursuing an arbitration. Any arbitration hearing that you attend will be held at a place chosen by the American Arbitration Association in the same city as the U.S. District Court closest to your then current residential address, or at some other place to which you and Mastry agree in writing, and the arbitrator shall apply Florida law consistent with the Federal Arbitration Act. You shall not be entitled to join or consolidate Claims in arbitration by or against other users or to arbitrate any Claim as a representative or member of a class or in a private attorney general capacity. You may obtain copies of the current rules, and forms and instructions for initiating an arbitration by contacting the American Arbitration Association by using the following contact information -- American Arbitration Association 800-778-7879 (toll-free) Website:www.adr.org. A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten (10) years’ experience or a retired or former judge, selected in accordance with the rules of the American Arbitration Association. The arbitration will follow the procedures and rules of the American Arbitration Association which are in effect on the date the arbitration is filed unless those procedures and rules are inconsistent with this Agreement, in which case this Agreement will prevail. Those procedures and rules may limit the discovery available to you or us. The arbitrator will take reasonable steps to protect your Account information and other confidential information if requested to do so by you or us. Each party to the arbitration will bear the expense of that party's attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines. The arbitrator's award is final and binding on the parties unless we or you appeal it in writing to the arbitration firm within fifteen (15) days of notice of the award. The appeal must request a new arbitration before a panel of three neutral arbitrators designated by the American Arbitration Association. An award by a panel is final and binding on the parties after fifteen (15) days has passed. Any Claim you have must be commenced within one (1) year after the date the Claim arises. As noted above, you and Mastry hereby voluntarily and knowingly waive any right either may have to a jury trial. We will not choose to arbitrate any Claim you bring in small claims court. However, if such a Claim is transferred, removed or appealed to a different court, we may then choose to arbitrate. In the event this arbitration clause is not enforceable by the specified arbitration organization, the parties will mutually agree upon another arbitration organization that will enforce this clause.
W. Class Action Waiver: YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND MASTRY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND. CLAIMS AND REMEDIES SOUGHT AS PART OF A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION ARE SUBJECT TO ARBITRATION ONLY ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS, AND THE ARBITRATOR MAY AWARD RELIEF ONLY ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS.
X. Additional Terms for Users of Apple Devices: If you have downloaded the App via the iTunes Store, the following shall apply: You acknowledge and agree that this Agreement are solely between you and us, not Apple, and that Apple has no responsibility for the App. Your use of the App must comply with Apple’s App Store Terms and Conditions, located at http://www.apple.com/legal/internet-services/itunes/us/terms.html. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to us as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to us as provider of the App. You acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the App, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the App against you as a third party beneficiary thereof. You represent that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and you are not listed on any U.S. Government list of prohibited or restricted parties.
Y. Questions: Should you have any questions regarding this Agreement, you may contact us at Support@mastry.me.
Last Updated and Effective as of February 2022