Primed Mind Application
Primed Mind GmbH, Wipplingerstrasse 12/2/4, 1010 Vienna, Austria
Last updated: May 08, 2018
Any permitted use of the Primed Mind application offered by Primed Mind GmbH (the “App”) shall be strictly subject to this Terms of Service (the “Agreement”). The present Agreement may be amended, modified or replaced as required from time to time. By commencing use of the App, users accept the validity of this Agreement in its most recent version. The currently valid version of this Agreement dated May 08, 2018 shall apply until further notice.
Primed Mind GmbH, a Austrian company (referred to as “us”, “we” or the “Company”), reserves the right to change or update the terms of this Agreement, or any other of our policies and practices. We may update and change the App in our absolute and sole discretion, including changes to the subject matter and materials. Any changes or updates will be effective immediately, and your continued use of the App will constitute agreement. We may or may not update you regarding any such changes.
The terms “you” “your” or “users” refers to the user of the App.
BY USING THE APP YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 16 YEARS OF AGE OR OLDER AND ALL REGISTRATION INFORMATION YOU SUBMIT IS TRUTHFUL AND ACCURATE; (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (D) YOUR USE OF THE APP DOES NOT VIOLATE ANY APPLICABLE LAW OR REGULATION. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE APP.
PLEASE NOTE THAT THESE TERMS CONTAIN AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THE ARBITRATION CLAUSE, YOU AND THE COMPANY AGREE THAT DISPUTES RELATING TO THESE TERMS OR YOUR USE OF THE APP WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND THE COMPANY WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION
LAWSUIT OR CLASS-WIDE ARBITRATION.
Art. 1 Object of Agreement
- The App has been designed to encourage users to achieve maximum performance through mental training. The designated goal for users is to become “the best version of themselves” as a result of this type of mental training. Results will vary between users, and we make no guarantees as to the suitability of your use of the App or to any particular result.
- The object of this User Agreement is the use of the App in its object code form including any associated ancillary services provided by Primed Mind GmbH (such as product specifications, manuals, explanations, etc.) by its user.
- The training texts are currently being prepared by mind coach Elliot Roe and made available in English as streaming audio files. Primed Mind GmbH expressly reserves the right to provide texts in other languages as well and to unilaterally replace the mind coach by another mind coach with equivalent qualifications and experience.
- Users expressly acknowledge that use of the App does not constitute any substitute for coaching, life and social counseling or availing oneself of the services of a psychologist, psychiatrist or psychotherapist whatsoever. IF YOU HAVE ANY DIAGNOSED PSYCHOLOGICAL CONDITION OR REASON TO BELIEVE SO YOU MUST CONTACT YOUR TREATING PHYSICIAN PRIOR TO USE OF THE APP. You understand that use of the App cannot and will not replace any counseling and/or recourse to therapeutic services rendered by a duly licensed professional, physician or psychologist in accordance with the relevant statutory provisions applicable to their work.
- We will provide users with an executable copy of the App in digital form. The deliverable quality of the App shall be based on its usage specifications and the present User Agreement. The method you choose to download the App may incur costs that we will not be responsible for.
- This User Agreement does not cover any installation or configuration services.
Art. 2 Rights Granted with Respect to the App
- Users are granted the non-exclusive, non-sublicensable license for personal, non-commercial use of the App, limited to the term of the present User Agreement and subject to the scope of use defined therein. You are restricted from accessing certain content subject to subscription and payment for premium services. Any contractual use shall include the installation as well as the loading, display and playback of the installed App.
- Users shall not have the right to copy, edit or decompile the App. AS PART OF YOUR USE OF THE APP, YOU AFFIRMATIVELY CONSENT TO THE PROCESSING AND STORAGE OF YOUR PERSONAL INFORMATION IN THE UNITED STATES, INCLUDING THE PROCESSING AND STORING OF YOUR PERSONAL INFORMATION IN THE UNITED STATES FOR THE PURPOSES OF PROCESSING PAYMENTS AND TRACKING INDIVIDUAL USE OF THE APP. BY USING THE APP, YOU ACKNOWLEDGE THAT YOU UNDERSTAND AND AGREE THAT THE UNITED STATES MAY NOT HAVE THE SAME LEVEL OF PROTECTIONS FOR YOUR PERSONAL INFORMATION THAT EXIST IN YOUR COUNTRY OF RESIDENCE, AND YOU NONETHELESS CONSENT TO THE PROCESSING AND STORAGE OF YOUR PERSONAL INFORMATION IN THE UNITED STATES. WE WILL TAKE MEASURES AS REQUIRED TO COMPLY WITH APPLICABLE LAW REGARDING THE TRANSFER, STORAGE AND USE OF CERTAIN PERSONAL INFORMATION.
- Users shall not have the right to make available copies of the software, materials or other content on the App as backup copies or to transfer to third parties. In particular, you shall be required to refrain from selling, loaning, renting out or sublicensing the software, materials or other content on the App in any other way and from reproducing it in public or making it generally available.
- Should a user fail to comply with one of the foregoing provisions, all and any right of use granted by virtue of the Agreement shall become void with immediate effect. In such an event, the infringing user shall completely and immediately cease using the App and shall delete all and any copies of the App installed on their systems without delay.
- We have the right to block access to the App at any time, and for any reason or no reason, including without restriction when users infringe on their obligations set out in this Article. We also have the right to stop providing updates or services to the App. We may alter any and all content on the App in our sole and absolute discretion. No such change in content, scope of service, removal of access, or termination of the App will permit refund of fees paid to us. We will not charge your account for future charges upon a termination of your license to use the App.
- In the event of a violation of intellectual property rights, users shall not be refunded the user fees that may have been paid by them. Any such paid fees shall count towards the claims asserted by Primed Mind GmbH as a consequence of the aforementioned violation of intellectual property rights.
Art. 3 Rights Granted with Respect to the App’s Audio and Video Files
- Users shall be entitled to listen to the audio files containing the mind coaching content as often as they wish and to use and utilize said content for their own private purposes and as part of their own lives.
- Any use of the audio files and/or their content for commercial or entrepreneurial purposes is prohibited, in particular for mind coaching, general coaching or life and social counseling.
- Any form of duplication, in particular downloading and recording of the audio files or any form of copying or transcribing their content or parts thereof is prohibited and constitutes a violation of intellectual property rights.
- All materials (including software and content whether downloaded or not) contained in the App are owned by us or a third-party licensor, as the case may be. You agree and acknowledge that the materials are valuable property and that other than any specific and limited license for use of such materials, you shall not acquire any ownership rights in or to such materials.
The materials may not be used except as provided for in these Terms, and any other relevant terms and conditions provided to you without our prior written permission.
- Audio or video content from Primed Mind not explicitly indicated as downloadable may not be downloaded or copied from the App.
- The App and all content are intended for your personal consumption and not for your commercial use. You must not use any part of the materials used in or on the App for commercial purposes without obtaining a written license to do so from us. Material from the App may not be copied or distributed, or republished, or transmitted in any way, without our prior written consent.
- You agree not to use the App for illegal purposes (including, without limitation, unlawful, harassing, libelous, invasion of another’s privacy, abusive, threatening or obscene purposes) and you agree that you will comply with all laws, rules and regulations related to your use of the App. ANY FORM OF BROADCASTING, PUBLIC REPRODUCTION, CREATION OF DERIVATIVE WORKS, DISPLAY OR MAKING AUDIO FILES AVAILABLE ONLINE AS WELL AS ANY COPYING OF AUDIO FILES AS A WHOLE OR IN PART IS PROHIBITED AND CONSTITUTES A VIOLATION OF INTELLECTUAL PROPERTY RIGHTS.
Art. 4 Intellectual Property
- The special provisions set out in Art. 2 and 3 of the User Agreement notwithstanding, any information, brand names, the name of the mind coach as well as any other App content must neither be modified, copied, duplicated, sold, rented out, used, amended nor exploited in any way without prior written approval by Primed Mind GmbH.
- Apart from the user rights and other privileges explicitly granted herein, users shall neither be granted any additional rights whatsoever, in particular with regard to the company name of Primed Mind GmbH or its industrial property rights such as patents, utility models, brands or name rights, nor shall Primed Mind GmbH be obliged to grant any such additional rights itself.
- In the event that users choose to publish or propagate ideas and suggestions with regard to the App or submit said ideas and suggestions to Primed Mind GmbH, Primed Mind GmbH and its affiliates shall be entitled to utilize them for the development, improvement, and sale of the products in their portfolios free of charge.
- You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. We reserve, along with applicable licensors, and shall retain the entire right, title and interest in and to the App, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except for the license for your use as expressly granted to you in this Agreement.
Art. 5 User Obligations
- In the course of using the Application, users shall be obliged to refrain from offending against common decency and good manners through their behavior as users;
- violating the property rights, copyrights, personal rights, ownership or any other rights of third parties;
- transmitting content infected by viruses, so-called trojan horses or any other programming that may damage the software;
- entering, saving or sending hyperlinks or content without proper authorization, in particular if such hyperlinks or content infringe on non-disclosure obligations or if they are illegal;
- disseminating advertising content or unsolicited e-mails (so-called spam) or incorrect warnings concerning viruses, malfunctions and suchlike, or asking others to take part in raffles, Ponzi schemes, chain letters, pyramid schemes and similar activities;
- taking any action in violation of this Agreement.
- We shall have the right to block access to the App at any time, in particular when users infringe on their obligations set out in this Article.
Art. 6 Fee, Due Date, Term, and Termination
All fees, the applicable due date, term, and termination shall be subject to the users’ subscription models as set forth:
We offer certain enhanced features of the App which you can purchase as a monthly, yearly or lifetime subscription (“Subscription”). All Subscriptions will have access to the same enhanced features. The monthly Subscription provides you 30 calendar days access to enhanced features. The yearly Subscription provides you 365 calendar days access to enhanced features. The lifetime Subscription provides you access to enhanced features for [the duration of your life] [120 years] or until we cease to commercially offer the App. Notwithstanding, we may terminate any Subscription immediately if you violate the terms of this Agreement.
A description of features associated with Subscriptions is available within the App and on our webpage at https://primedmind.com. The amounts due and payable by you for a Subscription that you purchase through the App will be presented to you before you place your order. If you choose to purchase a Subscription via the App you agree
- to pay the applicable fees and any taxes;
- that we may charge your account with the app store or distribution platform (like the Apple App Store or Google Play) where the App is made available (each, an “App Provider”); and
- to bear any additional charges that your App Provider, bank or other financial service provider may levy on you as well as any taxes or fees that may apply to your order. You’ll receive a confirmation email after we confirm the payment for your order. Your order is not binding on us until accepted and confirmed by us. All payments made are non-refundable and non-transferable except as expressly provided in these Terms.
- Monthly and yearly Subscriptions automatically renew according and are payable and charged to the following conditions:
- The first charge occurs at the beginning of the Subscription and, because each such Subscription renews automatically for an additional period equal in length to the expiring Subscription term until you cancel it, at the time of each renewal until you cancel. You must cancel your Subscription before it renews to avoid the billing of the fees for the next Subscription period, whether monthly or annually. If you purchase your Subscription via an App Provider, you can cancel the renewal of your Subscription with the App Provider. You will not receive a refund for the fees you already paid for your current Subscription period and you will continue to receive the enhance features ordered until the end of your current Subscription period.
- If you have any concerns or objections regarding charges, you agree to raise them with us first and you agree not to cancel or reject any credit card or App Provider charges unless you have made a reasonable attempt at resolving the matter directly with us.
- We reserve the right to not process or to cancel your order in certain circumstances, for example, if your credit card is declined, if we suspect the request or order is fraudulent, or in other circumstances we deem appropriate in our sole discretion. We also reserve the right, in our sole discretion, to take steps to verify your identity in connection with your order. We will either not charge you or refund the charges for orders that we do not process or cancel.
- Lifetime Subscriptions are paid for by a onetime, upfront payment. There is no automatic renewal. You must be an individual (natural-born person) to have a lifetime Subscription.
- Changes to Price Terms
Primed Mind reserves the right to change its pricing terms for Subscriptions at any time and Primed Mind will notify you in advance of such changes becoming effective. Changes to the pricing terms will not apply retroactively and will only apply for Subscription renewals after such changed pricing terms have been communicated to you. If you do not agree with the changes to Primed Mind’s pricing terms then you may choose not to renew your Subscription.
- Future Functionality
You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Primed Mind regarding future functionality or features. We may change, update, remove, or terminate any or all advanced features of the App at any time, without notice and for any reason. Your Subscription does not provide any guarantee to delivery of current or future functionality or features.
- This Agreement commences when you download the App and will continue in effect until terminated by you or us.
- You may terminate this Agreement by deleting the App and providing notice to us at email@example.com.
- We may terminate this Agreement at any time without notice for any reason or no reason. We may terminate this Agreement if we cease to support the App.
- This Agreement will terminate immediately and automatically without any notice if you violate any terms and conditions of this Agreement.
- Upon termination, all rights granted to you under this Agreement will also terminate and you must cease all use of the App.
- Termination will not limit any of the Company’s rights or remedies at law or in equity.
Art. 7 Availability
- In view of the nature of both the internet and computer systems, Primed Mind GmbH does not assume any liability for disruptions of the App’s availability. In particular, Primed Mind GmbH would like to advise users that limitations or impairments with regard to the App may occur that are beyond the control of Primed Mind GmbH.
- We may interrupt service and access to the App without notice to provide updates to the content, materials or software.
- The limitations or impairments mentioned above shall include, but are not limited to, activities on the part of third parties not acting on behalf of Primed Mind GmbH, technical internet conditions Primed Mind GmbH is unable to control as well as force majeure. The hardware, software and technological infrastructure employed by users may affect the App’s performance as well. To the extent that the aforementioned conditions impinge on the availability or functionality of the App, they cannot be considered to affect the App’s conformity with the provisions of the present Agreement.
- Primed Mind GmbH will provide users with the currently offered version of the App. Users, however, shall not be entitled to any version newer than the one supplied under this Agreement.
- We may terminate or suspend your account immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms.
Art. 8 Warranty
- The use of the App in accordance with this Agreement does not conflict with any third-party rights. Primed Mind GmbH will eliminate and cure any material and legal defects that may arise from or in connection with the App within a reasonable period of time. THE APPLICATION IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR 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. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Art. 9 Limitation of Liability
- Primed Mind GmbH would like to reiterate that the audio files described herein are no substitute for the services provided by life or social counselors, coaches, psychologists, psychiatrists, psychotherapists or physicians and that they are supplied without any promise or commitment in this respect. Consequently, Primed Mind GmbH does not assume any liability whatsoever in the event that users fail to consult qualified experts or specialists. No representation as to results or guarantee of any kind.
- Furthermore, Primed Mind GmbH does not assume any liability whatsoever for acts or omissions on the part of users that may arise in consequence of the use of the App.
- In all other respects, the disclaimer of liability on the part of Primed Mind GmbH shall extend, but shall not be limited, to any consequential damage unless such liability is mandated by the Product Liability Act due to willful acts, gross negligence, physical damage or adverse health effects or if such liability arises from the assumption of quality guarantees by Primed Mind GmbH, the fraudulent concealment of defects, or any breach of material contractual obligations on the part of Primed Mind GmbH. Compensation claims asserted for breaches of material contractual obligations, however, shall be limited to contractually typical and foreseeable damage unless caused by willful intent or gross negligence.
- Primed Mind GmbH does not assume any further liability. The limitation of liability defined above shall also apply to the employees, agents, and executive bodies of Primed Mind GmbH.
To the fullest extent permitted by applicable law, in no event will Primed Mind or its affiliates or any of its or their respective licensors or service providers, have any liability arising from or related to your use of or inability to use the application or the content and services for:
- Personal injury, property damage, lost profits, cost of substitute goods or services, loss of data, loss of goodwill, business interruption, computer failure or malfunction, or any other consequential, incidental, indirect, exemplary, special, or punitive damages.
- Direct damages in amounts that in the aggregate exceed the amount actually paid by you for the application.
- The foregoing limitations will apply whether such damages arise out of breach of contract, tort (including negligence), or otherwise and regardless of whether such damages were foreseeable or Primed Mind was advised of the possibility of such damages. Some jurisdictions do not allow certain limitations of liability so some or all of the above limitations of liability may not apply to you.
Art. 10 Personal Data
- Upon registration of a user, Primed Mind GmbH will collect customizable information, also with regard to the use of the App.
- Primed Mind GmbH collects and utilizes personal data within the meaning of GDPR being effective on May 25th, 2018 in particular for developing new applications, improving existing ones and adapting them to user requirements.
Art. 11 Miscellaneous
- For any transfer or assignment of rights arising from, or in connection with, the present Agreement to third parties by users, prior written approval by Primed Mind GmbH shall be required.
- This Agreement shall be exclusively subject to Austrian law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods dated April 11, 1980 (Vienna Convention) as well as to the exclusion of any conflict-of-law rules. Any claim, cause of action, or other dispute must be referred to and decided in Vienna, Austria. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
- The Parties hereto acknowledge that they are aware of the fact that the software described herein may be subject to export and import restriction. In particular, the software may be subject to official approval; restrictions concerning the use of the software or its associated technologies may apply in foreign countries.
- The place of performance for this Agreement shall be Vienna, with the courts of Vienna having exclusive jurisdiction provided both parties are entrepreneurs or corporate bodies under public law.
- Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. There shall be a single arbitrator appointed. The arbitration shall take place in the venue designated in this Agreement. The arbitration proceeding and decision shall be in English. This Arbitration provision shall survive termination of the Agreement.
- Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, including the breach, termination or validity thereof, shall be finally resolved by arbitration as set forth above. The tribunal shall have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of the agreement to arbitrate. The parties agree to arbitrate solely on an individual basis, and that this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the arbitration agreement will remain in force.
- Should one or more provisions contained in the present Agreement be invalid, the remaining provisions shall nevertheless continue with full force and effect. In any such event, the Parties hereto shall endeavor to agree on a new provision in lieu of the invalid one corresponding to the contractual aim of this Agreement as to its legal and economic effect as closely as possible.