Agreement to Terms
By using the App, you agree to be bound by these Terms. If you don't agree to these Terms, do not use the App.
Changes to Terms or App
I may modify the Terms at any time, in my sole discretion. If I do so, I'll let you know either by posting the modified Terms on the Site or through other communications. It's important that you review the Terms whenever I modify them because if you continue to use the App after I have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don't agree to be bound by the modified Terms, then you can't use the App anymore. Because my App is evolving over time I may change or discontinue all or any part of the App, at any time and without notice, at my sole discretion.
Who May Use the App
You may use the App only if you are 13 years or older and are not barred from using the App under applicable law. To make a purchase via the App (described in the Section titled "Purchases" below), you must be 18 years or older and capable of forming a binding contract.
Using the App
Via the App, users can select from a variety of options to create customized relaxation, breathing, and stretching sessions. Users of the App can also use the paid functionality of the App to utilize the enhanced functionality of the App, described in further detail under the Section titled "Purchases" below.
You understand and agree that the App and any other information you learn from Me are not intended, designed, or implied to diagnose, prevent, or treat any condition or disease, to ascertain the state of your health, or to be a substitute for professional medical care. Not all activities described on the App are suitable for everyone. Consult a physician before using the App. If you experience any pain, discomfort, or any other harm while using the App, stop using the App immediately. Do not use the App while driving, operating heavy machinery, or performing other tasks that require attention and concentration. You understand and agree that you are solely responsible for your use of the App.
I offer certain enhanced functionality of the App in exchange for the payment of one-time fees. Descriptions of features associated with those offerings are available via the App. If you choose to purchase the enhanced offerings via the App, you agree to pay the applicable fee and any taxes, and the fee will be charged to 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"). All fees are non-refundable and non-transferable except as expressly provided in these Terms.
I welcome feedback, comments and suggestions for improvements to the App ("Feedback"). You can submit Feedback by completing an online form at http://goo.gl/nb7yQ. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicenseable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Content and Content Rights
For purposes of these Terms, "Content" means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the App.
I and my licensors exclusively own all right, title and interest in and to the App and Content, including all associated intellectual property rights. You acknowledge that the App and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the App or Content.
Subject to your compliance with these Terms, I grant you a limited, non-exclusive, non-transferable, non-sublicenseable license to download, view, copy and display the Content solely in connection with your permitted use of the App and solely for your personal and non-commercial purposes.
Rights and Terms for Apps
Rights in App Granted by Me
Subject to your compliance with these Terms, I grant you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. I reserve all rights in and to the App not expressly granted to you under these Terms.
Additional Terms for App Store Apps
If you download the App through or from any App Provider, then you acknowledge and agree that:
You may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means.
You agree not to do any of the following:
Although I am not obligated to monitor access to or use of the App or Content or to review or edit any Content, I have the right to do so for the purpose of operating the App, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. I reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if I, at my sole discretion, consider any Content to be objectionable or in violation of these Terms or my Acceptable Use Policy. I have the right to investigate violations of these Terms or conduct that affects the App. I may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources
The App and App may contain links to third-party Websites or resources. I provide these links only as a convenience and are not responsible for the content, products or App on or available from those Websites or resources or links displayed on such sites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party Websites or resources.
I may terminate your access to and use of the App, at my sole discretion, at any time and without notice to you. Upon any termination, discontinuation or cancellation of App, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
THE APP AND CONTENT ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, I EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. I make no warranty that the App will meet your requirements or be available on an uninterrupted, secure, or error-free basis. I make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify and hold harmless Me and my officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the App or Content or (ii) your violation of these Terms.
Limitation of Liability
NEITHER I NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE APP OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE APP ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE APP OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT I HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL MY TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE APP OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO ME FOR USE OF THE APP OR CONTENT OR FIFTY DOLLARS ($50), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO ME, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ME AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of Pennsylvania without regard to its conflict of laws provisions.
Agreement to Arbitrate You and I agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the App or Content (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an "IP Protection Action"). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Western District of Pennsylvania and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and I are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Me otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and I otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and I submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award of damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. I will not seek, and hereby waive all rights I may have under applicable law to recover, attorneys' fees and expenses if I prevail in arbitration.
your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, I will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the "Modification" section above, if I change this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by completing an online form at http://goo.gl/nb7yQ) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of My email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Me in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between Me and you regarding the App and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Me and you regarding the App and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without My prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. I may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Me under these Terms, including those regarding modifications to these Terms, will be given: (i) by Me via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
My failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by My duly authorized representative. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the App, please contact Me at http://goo.gl/nb7yQ.