Keepr Portal Terms of Service
1. Scope of Agreement
These terms (the “Terms of Service”) govern your use of
the Keepr Portal (together with the services enabled by the Keepr app,
“Keepr”), associated personal alcohol monitoring
devices offered by us (referred to herein as “Keepr
Device(s)”), subscriptions and support services, and any
related current or future products and services (together, the
“Offerings”) of Mindr and our corporate affiliates
(referred to together and interchangeably as “we,”
“us, “our” or
“Mindr”), unless we provide such other products or
services to you under separate terms and conditions. “Keepr” also
includes any updates or other modifications to the Keepr Portal that we
may release and provide as optional or required software updates for
such Portal.
1.1 If you use or subscribe to any of our Offerings,
including on a trial or no-charge basis, you are agreeing that these
Terms of Service apply to you and you understand they are a binding
legal agreement between you and us. Please review these Terms of Service
carefully. IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF SERVICE,
THEN YOU ARE NOT AUTHORIZED TO ACCESS OR USE KEEPR OR ANY OF OUR OTHER
OFFERINGS.
THESE TERMS OF SERVICE CONTAIN A BINDING INDIVIDUAL ARBITRATION
REQUIREMENT AND CLASS ACTION WAIVER THAT AFFECT YOUR RIGHTS WITH RESPECT
TO ANY DISPUTES. PLEASE BE SURE THAT YOU AGREE TO THOSE TERMS BEFORE YOU
USE ANY OF OUR OFFERINGS.
1.2 Your use of our Offerings is also subject to
the
Keepr General
Privacy Notice and State Privacy
Notices.
2. Disclaimer Regarding Use of Our Offerings and Breath Alcohol
Measurement Data
DRINKING ANY AMOUNT OF ALCOHOL AND DRIVING OR OPERATING
DANGEROUS EQUIPMENT IS NOT SAFE. OUR OFFERINGS SHOULD NOT BE USED TO
DETERMINE IF (1) YOU SHOULD OPERATE A MOTOR VEHICLE OR EQUIPMENT OR
ENGAGE IN ANY OTHER ACTIVITY THAT MAY PUT YOU OR OTHERS AT RISK OR (2)
YOUR BLOOD ALCOHOL CONTENT IS WITHIN ANY LEGAL LIMIT APPLICABLE TO
DRIVING OR OTHER ACTIVITIES YOU ENGAGE IN. ANY DECISIONS AND/OR ACTIONS
TAKEN BASED ON INFORMATION OBTAINED FROM OUR OFFERINGS ARE MADE ENTIRELY
AT THE USER’S OWN RISK.
3. Creating and Securing your Account
You will need to register for a user account
(“Account”) on our Offerings to subscribe to and use
some of our Offerings. You agree to provide us with accurate, complete
and updated Account information. Failure to do so will be a breach of
these Terms of Service, and may result in us terminating your Account
and access to our Offerings with or without notice to you. You agree to
keep your Account password confidential. You are fully responsible for
all activities that occur under your Account, even if such activities or
uses were not committed by you. Mindr will not be liable for any loss or
damage arising from unauthorized use of your password or your Account,
or from your failure to comply with this paragraph.
By creating an Account, you are representing to us that you are at least
15 years old, and you are not prohibited from receiving products of U.S.
origin, including services or software. If you are under the age of 18,
you also represent that your legal guardian has reviewed and agreed to
these Terms of Service.
4. License Terms for Using Your Account and our Offerings
Subject to your compliance with these Terms of Service, including the
license limitations below, we grant you a limited, non-exclusive,
non-transferable and revocable license to download and use the Keepr
Portal, your Account, and our related Offerings solely for your lawful
purposes, except you may transfer these rights in compliance with the
terms of your Commercial Agreement with Mindr.
4.1 License limitations
As a condition of your license to use our Offerings, you will not:
a) Create an Account using a false identity or information, or
on behalf of someone other than yourself;
b) Attempt to obtain or control the password or use the
Account of any other user of our Offerings;
c) Sell, offer to sell, distribute or otherwise provide access
to your Account or any part of our Offerings to anyone else;
d) Attempt to gain unauthorized access to any Account or to
the Offerings or the software, equipment and networks used by us to
provide the Offerings;
e) Disable, hack, circumvent, or misuse any part or feature of
the Offerings, or attempt to do any of the foregoing;
f) Take any action or assist anyone in any action that harms
or limits the security, stability or proper operation of any of our
Offerings or their availability and proper performance for any other
user. This includes without limitation any distribution of any virus,
cheat code, denial of service attack, or any other activity reasonably
anticipated to disrupt our Offerings;
g) Use your Account or our Offerings for any unauthorized or
illegal purpose or to do anything that violates any applicable laws,
rules, or regulations, or directs or encourages others to engage in any
such conduct;
h) Harass, abuse, or harm, or advocate or incite harassment,
abuse or harm of another person or group, including our customer service
team, other personnel, or other users of our Offerings;
i) Post, promote or transmit in connection with your Account
or our Offerings any communication or information that is false or
misleading, or that is abusive, threatening, violent, obscene,
defamatory, libelous, or racially, sexually, religiously, or otherwise
objectionable or offensive;
j) Make available through your Account or our Offerings any
material that (i) you do not own or have the right to use, or (ii)
infringes the intellectual property rights of others, or (iii) violates
a person’s privacy rights, or (iv) contains the confidential or
proprietary information of anyone else;
k) Transmit unauthorized communications through any Offerings,
including junk mail, chain letters, spam and any materials that promote
malware, spyware and downloadable items;
l) Bypass any robot exclusion headers or other measures we use
to protect our communications and technology infrastructure and control
access to and use of our Offerings; or
m) Reverse engineer, decompile or disassemble the technology
used by us to provide the Offerings, except if and as expressly
permitted by applicable law.
4.2 Reservation of Rights
The Offerings and all technology, methods and content contained in or
accessed through the Offerings are protected by United States and
international intellectual property and other relevant laws. By using
the Offerings, you do not acquire any rights in or to our trademarks,
our copyrighted materials, or our technology, methods and content
contained in or accessed through the Offerings.
5. Keepr End User Roles and Sharing of Keepr-Related
Reports
5.1 Self User, Standard Contact and Authorized Contact
Roles
Keepr supports two types of end uses: (a) for personal use of the Keepr
app’s testing-related recordkeeping and monitoring services (“Self User”
or “User”); and (b) for use by others as a “Standard Contact” or
“Authorized Contact” of a Self User. A Self User can grant permissions
to a Standard Contact to have it monitor and track the Self User’s use
of the Device and Offerings, including but not limited to live location
data, breath sample results, and other information the User permits.
Authorized Contacts have the same capabilities as a Standard Contact,
except Authorized Contacts can also schedule breath samples from the
Self User and view any changes to permissions the Self User grants them.
Self Users can change permissions they grant to a Standard Contact or
Authorized Contact. Each Self User, Standard Contact or Authorized
Contact must establish a separate Account and use the Offerings only
under his or her own Account. For clarity, these Terms of Service apply
to Self Users, Standard Contacts, and Authorized Contacts.
5.2 Responsibilities; User Disputes
You are solely responsible for your interactions with other users
through our Offerings and for all of your communications in connection
with the Offerings. Without limiting this principle, Self Users are
responsible for selecting any Authorized Contacts or Standard Contacts
they choose to interact with in connection with the Offerings and for
their communications with such Authorized Contacts or Standard Contacts;
and Authorized Contacts and Standard Contacts are responsible for
selecting who they intend to interact with in connection with the
Offerings and for their communications with them. If there is a dispute
between you and any other user of our Offerings, or anyone else in
connection with our Offerings, you agree that Mindr has no obligation to
become involved, and you hereby irrevocably release us from claims,
demands and damages of every kind or nature arising out of or in any way
related to such dispute. If you are a California resident, you waive
California Civil Code §1542, which says: “A general release does not
extend to claims which the creditor or releasing party 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
settlement with the debtor or released party.”
5.3 Sharing Information via the Keepr App and
Portal
Self Users have the option to enable an Authorized Contact or Standard
Contact to monitor their testing activities, live location, breath
sample results and other selected information via the Offerings. Self
Users fully control the information that an Authorized Contact or
Standard Contact can monitor, and these permissions can be changed at
any time by the Self User. Self Users also have the option of sending
reports of their information outside of the Offerings (“Reports”) via
email. These Reports consist of the Self User’s breath sample results,
account creation date, and other identifying information based on their
use of the Offerings. Only the Self User can create and initially share
Reports. You, as a Self User, may in your discretion choose to allow the
monitoring of your testing and location activities and/or to share a
Report with anyone you may choose, using email or other communications
methods supported by Keepr.
YOU ARE SOLELY RESPONSIBLE FOR ANY ACTION YOU TAKE TO SHARE ANY REPORT
OR OTHER INFORMATION DERIVED FROM THE USE OF OUR OFFERINGS WITH AN
AUTHORIZED CONTACT, STANDARD CONTACT OR ANYONE ELSE, AND FOR SELECTING
SPECIFICALLY WHAT YOU SHARE AND HOW YOU DESCRIBE IT. WE HAVE NO
RESPONSIBILITY FOR ANY USE OR MISUSE OF ANY REPORT OR OTHER INFORMATION
YOU CHOOSE TO SHARE VIA OR IN CONNECTION WITH OUR OFFERINGS. IF YOU
RECEIVE A REPORT OR OTHER INFORMATION FROM ANOTHER USER OF OUR
OFFERINGS, DIRECTLY OR INDIRECTLY, YOU MUST DETERMINE AND COMPLY WITH
THAT USER’S INSTRUCTIONS REGARDING USE AND DISCLOSURE OF THAT REPORT OR
OTHER INFORMATION. WE HAVE NO RESPONSIBILITY FOR ENSURING SUCH
COMPLIANCE, OR THAT THE USER’S INSTRUCTIONS ARE CLEAR OR ACCURATE.
5.4 Your Communications
Whenever you email, transmit or otherwise share any text, photo, breath
sample results, location data or any other content or information via
our Offerings (together, “Your Content”), you hereby
represent that Your Content (a) does not include anyone else’s
confidential information; (b) does not violate any applicable laws,
contract obligations or third-party rights, and that you have permission
from anyone whose personal information or intellectual property is
included in Your Content; (c) does not include any spyware, virus or
other malicious code; and (d) does not in any way violate your
obligations under the License Limitations above. Without limiting your
liability or our remedies for any violation by you, we may, but are not
obligated to, monitor, refuse to transmit or delete any of Your
Content.
5.5 Privacy Statement
Please review Keepr’s General Privacy
Notice and State Privacy
Notices for additional terms regarding Your Content, Reports, how
your information is shared and our processing of these and other
personal information.
6. Fees and Other Costs
6.1 Payment for Subscription Services
To subscribe to one of our Offerings, you will need to supply us or our
designated e-commerce and payment platforms, certain payment information
such as ACH information, credit card number, the expiration date of your
credit card and your billing address. By providing this information, you
represent and warrant that you have the legal right to use the
designated credit card or other payment method in connection with any
transaction related to our Offerings (including upon any renewal), and
you irrevocably agree that we or our designee can provide such
information to third parties for purposes of facilitating the completion
of the applicable transactions. If your credit card, payment, or billing
information changes, you must promptly update it (using the
functionality provided for this purpose within the Offerings).
6.2 Late Payments and Collection
By subscribing to any of our Offerings, you agree to pay in full in
accordance with the subscription terms for that Offering. For all
amounts past due, we may assess and collect late payment fees of the
lower of (a) 1.5% per month or (b) the maximum amount permitted by
applicable law. If we hire an attorney or collection agency to secure
payment of any amount due, you will be responsible for reimbursing us
for all reasonable attorneys’ fees and costs associated with collection
of such past due amounts.
6.3 Your Responsibility for Separate Costs
You are responsible for acquiring, maintaining, and paying for all
equipment, hardware, devices, and services required to access and use
the Offerings. You are responsible for paying all third-party fees, such
as fees to a mobile carrier and/or internet service provider, that you
incur in connection with our Offerings. You are responsible for all
costs associated with the installation, maintenance, repair,
replacement, loss, or damage of any Keepr devices, except as otherwise
expressly agreed to in writing.
6.4 Purchases of Keepr Devices
Please see our Device Purchase Terms for additional terms and conditions
that apply to your purchase of Keepr Devices for use as part of our
Offerings.
7. Keepr Subscription Service Autorenewal; Cancellations
7.1 Autorenewals
We will automatically renew your Keepr subscription based on the term
you select when you first purchased your subscription. For example, if
you purchase a twelve-month subscription, we will automatically renew
your subscription every twelve months. With each autorenewal, you will
be automatically charged the appropriate subscription fee using the
payment method you provided when you first registered for your
subscription, unless you cancel your subscription before the end of your
current subscription term.
(a) Cancellation by You
You may cancel your subscription within the first ninety (90) days of
activation. If you cancel, we will stop providing you access to the
Keepr Portal at the end of the period for which you have paid. For
example, if you have a twelve-month subscription and you cancel during
your twelve-month term, your access to the Keepr Portal will stop at the
end of the twelve-month subscription term. If you don’t cancel, we will
continue charging you your recurring subscription fee as described in
Section 7.1 above.
(a) Deadline for Stopping a Monthly Charge
You must provide at least thirty (30) days’ prior written notice to
cancel your Keepr Portal subscription.
(b) Cancellation Method
You can cancel your Keepr Portal subscription by logging into your
Account here or by
contacting us here.
(c) Subscription Payments are Non-Refundable
We do not refund subscription payments, but you can exercise your
cancellation rights to stop paying as of the next subscription term, as
described above. However, we will provide you with access to the Keepr
Portal until that paid-up service period expires, after which we may
purge the information in your Account according to our retention
schedule found in our State Privacy
Notices and the terms of Sections 7.3 and 7.4 below will
apply.
7.2 Termination for Breach. We reserve the right to
suspend or terminate your access to some or all parts of our Offerings,
including the Portal and the Keepr service, and/or terminate your
Account and this agreement if (i) you violate these Terms of Service,
(ii) we suspect that you have engaged in any illegal or unauthorized use
of an Offering, (iii) you engage in any abusive, threatening or
harassing behaviors in your communications with our customer support
agents, other personnel or other users of our Offerings, or (iv) we are
required to do so by a court order or other legal requirement.
7.3 Consequences of Termination or Cancellation. Upon
cancellation, suspension or termination of your Account or access to
Keepr or our other Offerings, you will not be able to access and
download content or information stored on our systems, and we may in our
discretion delete any and all such content and information. You do not
have an ownership of or property interest in your Account, and we do not
have any obligation to compensate you for termination of your Account or
loss of access to any content and information via our Offerings.
7.4 Continuation of Certain Terms. If you or we cancel
and/or terminate our agreement with you under these Terms of Service
(including if we terminate your Account or access to the Offerings), the
parts of these Terms of Service that can reasonably expected to stay in
effect will continue to be binding on both Mindr and you. For example,
but not by way of limitation, your obligation to make any payments that
you have not made before termination, and the Terms of Service
provisions that limit our liability and apply to dispute resolution
between us, will continue to apply even after termination of your use of
the Offerings and of our agreement with you.
7.5 Modifying and Discontinuing our Offerings. Our
Offerings will continue to evolve over time. From time to time, we may
require that you accept a software update from us in order to continue
using an Offering, or we may discontinue offering or supporting our
Offerings, or parts of them, on either a permanent or temporary basis.
We will use commercially reasonable efforts to post notice in advance of
such modifications, suspensions or terminations within the affected
Offerings. If we stop providing the subscription service during a period
for which you have prepaid for Keepr, we will refund you the part of
your prepaid subscription fee that reflects the portion of your prepaid
period in which the Keepr service is no longer available.
8. DISCLAIMERS / LIMITATIONS / WAIVERS / INDEMNIFICATION
8.1 We Do Not Provide Medical Care, Medical Advice or
Determinations regarding a User’s Capacity
Although our Offerings may provide ways for you to share certain
information with your health care providers or others, the Offerings are
not intended for clinical purposes, to diagnose or treat a medical or
health condition, or to provide medical advice or as a substitute for
diagnosis or treatment. Always seek the advice of a qualified medical
professional for questions regarding medical conditions. INFORMATION
OBTAINED VIA THE OFFERINGS IS FOR GENERAL INFORMATIONAL PURPOSES ONLY.
USE AT YOUR OWN RISK. NO KEEPR DEVICE, AND NO OFFERING OR INFORMATION OR
SERVICE FACILITATED BY THE OFFERINGS, IS INTENDED TO BE, AND YOU MUST
NOT BE TAKE IT TO BE, THE PRACTICE OF MEDICINE OR THE DELIVERY OF
MEDICAL CARE.
WE ARE NOT RESPONSIBLE FOR HOW YOU ELECT TO USE OR SHARE INFORMATION YOU
OBTAIN FROM USING OUR OFFERINGS, FOR THE ACCURACY OR RELIABILITY OF THIS
INFORMATION, OR FOR ANY COURSE OF ACTION OR DECISIONS YOU MAY CHOOSE
BASED ON INFORMATION OBTAINED VIA THE OFFERINGS. ANY ACT OR FAILURE TO
ACT BASED ON THE USE OF A REPORT OR DATA FROM A KEEPR DEVICE OR
OTHERWISE PROVIDED BY THE OFFERINGS IS AT THE USER’S OWN RISK. Mindr
DOES NOT MAKE ANY WARRANTIES THAT ANY KEEPR DEVICE, INFORMATION WITHIN
THE KEEPR APP OR PORTAL OR USE OF THE OFFERINGS IS USEFUL OR RELIABLE IN
DETERMINING IF, OR THE EXTENT TO, A TEST SUBJECT’S JUDGMENT OR
CAPABILITIES MAY BE IMPAIRED BY BLOOD ALCOHOL, INCLUDING WHETHER THE
TEST SUBJECT QUALIFIES AS INTOXICATED IN ANY CONTEXT IN WHICH THAT OR A
SIMILAR TERM MAY BE RELEVANT.
MINDR DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR HARM OR OTHER
CONSEQUENCES TO OR IN CONNECTION WITH USERS OF ANY KEEPR DEVICE AND ARE
SUBSEQUENTLY FOUND TO HAVE BEEN UNDER THE INFLUENCE OF ALCOHOL OR TO
HAVE HAD THEIR JUDGMENT OR ANY MENTAL OR BODILY FUNCTION IMPAIRED BY
ALCOHOL. ACCURACY OF INFORMATION PROVIDED BY KEEPR DEVICES IS AFFECTED
BY MANY VARIABLES, INCLUDING WITH WITHOUT LIMITATION WHETHER THE TEST
SUBJECT COMPLIED WITH ALL INSTRUCTIONS AND USAGE RESTRICTIONS SPECIFIED
BY Mindr WITH RESPECT TO THEIR KEEPR DEVICE, WHETHER THE DEVICE HAS BEEN
DAMAGED OR TAMPERED WITH, ENVIRONMENTAL FACTORS (E.G, TEMPERATURE, AIR
QUALITY, WIND, HUMIDITY, TEMPERATURE, ETC.) AND THE TEST SUBJECT’S
HEALTH, METABOLISM AND OTHER FACTORS RELATED TO PHYSICAL
CONDITION.
8.2 FURTHER DISCLAIMERS OF WARRANTIES
EXCEPT FOR ANY SEPARATE LIMITED WARRANTY THAT MAY BE INCLUDED WITH A
KEEPR DEVICE THAT YOU HAVE PURCHASED, AND SUBJECT TO APPLICABLE LAW, THE
KEEPR APP OR PORTAL AND OFFERINGS ARE PROVIDED ON AN “AS IS” BASIS
WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. Mindr
DOES NOT REPRESENT THAT (A) YOUR USE OF ANY OF THE OFFERINGS WILL BE
UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR (B) THE RESULTS THAT MAY
BE OBTAINED FROM THE USE OF ANY KEEPR DEVICE OR OTHER OFFERING WILL BE
ACCURATE OR RELIABLE. UNDER NO CIRCUMSTANCES WILL Mindr, ITS EMPLOYEES,
OFFICERS, DIRECTORS, AGENTS, AFFILIATES, SHAREHOLDERS, PARENT COMPANIES,
SUCCESSORS, ASSIGNS, VENDORS OR PARTNERS (THE “MINDR PARTIES”) BE LIABLE
TO YOU OR ANY PARTY FOR ANY INDIRECT, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST
DATA, OR INTERRUPTION OF BUSINESS ACTIVITIES) WHETHER OR NOT NOTICE OF
THE POSSIBILITY OF SUCH DAMAGES HAS BEEN PROVIDED, AND WHETHER THE CLAIM
OR ACTION IS BASED ON CONTRACT, WARRANTY, TORT OR ANY OTHER LEGAL
THEORY.
8.3 LIMITATIONS; WAIVERS OF LIABILITY
THE TOTAL LIABILITY OF Mindr AND ANY Mindr PARTY FOR ANY CLAIM RELATED
TO THE OFFERINGS OR THESE TERMS OF SERVICE WILL NOT EXCEED $100. THIS
LIMITATION APPLIES TO ANY DAMAGES, LIABILITY OR INJURIES INCLUDING BUT
NOT LIMITED TO THOSE CAUSED BY ANY FAILURE OF PERFORMANCE, INACCURACY,
ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR
TRANSMISSION, VIRUS, COMMUNICATION FAILURE, OR VIOLATION OF ANY PERSONAL
OR PROPRIETARY RIGHTS, AND WHETHER BASED ON BREACH OF CONTRACT, TORT,
NEGLIGENCE OR ANY OTHER CAUSE OF ACTION.
YOU ACKNOWLEDGE AND AGREE THAT, SUBJECT TO APPLICABLE LAW, THE
LIMITATIONS AND DISCLAIMERS OF LIABILITY IN THESE TERMS OF SERVICE APPLY
TO ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR
INABILITY TO USE, KEEPR DEVICES AND ALL OTHER OFFERINGS UNDER ANY CAUSE
OR ACTION WHATSOEVER OF ANY JURISDICTION. THIS INCLUDES, WITHOUT
LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT
(INCLUDING NEGLIGENCE) AND THAT Mindr WILL HAVE NO LIABILITY FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY
WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE
OFFERINGS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR
THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES.
THEREFORE, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, AND YOU
MAY BE ENTITLED TO APPLICABLE STATUTORY RIGHTS AS ANY CONSUMER.
8.4 Indemnification
You agree to defend, indemnify and hold the Mindr Parties harmless from
and against any loss (actual or consequential), demand, damage (direct
or indirect) and expense (including attorneys’ fees) (collectively,
“Losses”) arising from claims in connection with or related to breach of
the representations, warranties, and covenants made by you under these
Terms of Service, any other violation by you of these Terms of Service,
your User Content, or your use or misuse of the Offerings.
You also agree that no Mindr Party will be responsible or have any
liability for the consequences of any decision based on the use of the
Offerings, including any Keepr Device. This includes without limitation
any decision to operate any vehicle, boat, aircraft, or other equipment.
You agree to defend, indemnify and hold the Mindr Parties harmless from
and against any Losses arising from any such decision. Mindr reserves
the right, at our own expense, to assume exclusive defense and control
of any matter for which you are obligated to indemnify us, and you agree
to cooperate with us in asserting relevant available defenses.
9. AGREEMENT TO BINDING ARBITRATION; WAIVERS
Please carefully read this provision. It applies to any dispute
between you and Mindr related to these Terms of Service or our
Offerings.
YOU AND Mindr AGREE TO RESOLVE ANY DISPUTES ARISING OUT OF OR RELATED TO
THESE TERMS OF SERVICE OR OUR OFFERINGS ONLY BY ARBITRATION OR IN SMALL
CLAIMS COURT AS DISCUSSED BELOW. YOU UNDERSTAND THAT BY ENTERING INTO
THESE TERMS YOU ARE GIVING UP THE RIGHT TO BRING A CLAIM IN COURT OR IN
FRONT OF A JURY. AN ARBITRATOR CAN AWARD YOU THE SAME DAMAGES AND
RELIEF, AND MUST HONOR THE SAME TERMS IN THESE TERMS OF SERVICE, AS A
COURT WOULD. HOWEVER, ARBITRATION PROCEDURES ARE SIMPLER AND MORE
LIMITED THAN RULES APPLICABLE TO COURT, INCLUDING THE REVIEW OF ANY
DECISION OR RESULT.
9.1 Initial Dispute Resolution
Except for intellectual property and small claims court cases, you and
Mindr agree to use best efforts to settle any dispute, claim, question
or disagreement directly through consultation between you and Mindr, and
good faith negotiations shall be a condition to either party initiating
arbitration.
9.2 Arbitration
If within a period of thirty (30) days from the time an informal dispute
resolution is initiated under the Initial Dispute Resolution provision
above either (i) the parties do not reach an agreed-upon solution, or
(ii) you have not opted out of this arbitration provision in writing
using the mailing address below, then either party may initiate binding
arbitration as the sole means to resolve claims, subject to the terms
set forth below.
(a) You and Mindr agree that the Federal Arbitration Act applies to these Terms of Service.
(b) You and Mindr agree that, except for small claims court cases, any dispute that in any way arises out of or relates to (i) these Terms of Service, (ii) the collection, use, processing, sharing or disclosure of your personal or biometric information, (iii) any Offering, (iv) any advertising for any of our or our affiliates’ products or services, (v) any disputes you have with our employees or agents, or (vi) any disputes about whether this arbitration provision is enforceable, will be resolved by arbitration by one or more neutral arbitrators before the American Arbitration Association (“AAA”). You can also bring any issues you may have to the attention of federal, state, or local government agencies, and if the law allows, they can seek relief against us for you. This agreement to arbitrate continues to apply even after you have stopped receiving products and services from us.
(c) Unless you and Mindr agree otherwise, the arbitration will take place in the state and county in which you reside. The AAA’s consumer arbitration rules will apply. You can get procedures, rules and fee information from the AAA, which you can find at www.adr.org.
(d) You and Mindr agree that for claims within the jurisdictional limit of the small claims court in the state in which you reside, either you or Mindr can choose to bring an individual action in small claims court instead of proceeding in arbitration. Furthermore, if the claims in any request or demand for arbitration could have been brought in small claims court, then either you or Mindr may choose to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party of that choice in writing. If the limitation on bringing actions to small claims court is found to be invalid, then this provision shall be severable and the matter will proceed in arbitration. In no way will this provision allow for an action to be brought on a class or collective basis.
(e) THIS AGREEMENT DOES NOT ALLOW CLASS OR COLLECTIVE ARBITRATIONS
EVEN IF THE AAA PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER
PROVISION OF THESE TERMS OF SERVICE, THE ARBITRATOR MAY AWARD MONEY OR
INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF
AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT
PARTY’S INDIVIDUAL CLAIM. NO CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY
GENERAL OR GENERAL INJUNCTIVE RELIEF THEORIES OF LIABILITY OR PRAYERS
FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THESE TERMS
OR SERVICE. ANY QUESTION REGARDING THE ENFORCEABILITY OR INTERPRETATION
OF THIS PARAGRAPH SHALL BE DECIDED BY A COURT AND NOT THE
ARBITRATOR.
(f) If either you or Mindr intends to seek arbitration under these
Terms, the party seeking arbitration must first notify the other party
of the dispute in writing at least 60 days in advance of initiating the
arbitration. Notice to arbitrate should be sent to Mindr, 12421 Meredith
Drive, Suite 100, Urbandale, IA 50323. The notice must include enough
information to allow us to identify your account if applicable, as well
as to assess and attempt to resolve your claim, including the name of
the user or Mindr account holder, a description of the claim, the
specific facts supporting the claim, the damages you claim to have
suffered and the relief you are seeking. The notice requirement is
designed to allow Mindr to make a fair, fact-based offer of settlement
if it chooses to do so. You cannot proceed to arbitration unless you
provide this information. The sufficiency of this notice is an issue to
be decided by a court prior to the filing of any demand for arbitration.
If you have provided this information and we are unable to resolve our
dispute within 60 days, either party may then proceed to file a claim
for arbitration. Mindr will reimburse any filing fee that the AAA
charges you for arbitration of the dispute. If that arbitration
proceeds, Mindr will also pay any administrative and arbitrator fees
charged later. If the arbitrator determines that your claim was filed
for purposes of harassment or is patently frivolous, the arbitrator will
require you to reimburse Mindr for any filing, administrative or
arbitrator fees associated with the arbitration. If you choose to be
represented by an attorney and prevail in this arbitration, Mindr will
reimburse all reasonable attorneys’ fees, as determined by the
arbitrator.
(g) If any provision of this Section 9 is held illegal or unenforceable
in a judicial proceeding, such provision shall be severed and shall be
inoperative, and the remainder of this Section 9 will remain operative
and binding on you and Mindr. Notwithstanding the foregoing, if for some
reason the prohibition on class arbitrations set forth in Section 9.2(e)
cannot be enforced as to all or part of a dispute, then the agreement to
arbitrate will not apply to that dispute or part of the dispute.
IF, FOR ANY REASON, A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH
ARBITRATION, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY LITIGATION, ACTION, PROCEEDING, CROSS CLAIM, OR
COUNTERCLAIM IN ANY COURT (WHETHER BASED ON CONTRACT, TORT, OR
OTHERWISE) ARISING OUT OF, RELATING TO OR IN CONNECTION WITH (i) THESE
TERMS OR THE VALIDITY, PERFORMANCE, INTERPRETATION, COLLECTION OR
ENFORCEMENT HEREOF OR (ii) THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION,
AUTHORIZATION, EXECUTION, DELIVERY, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT HEREOF.
10. GENERAL PROVISIONS
10.1 Assignment
If we become involved in a merger, acquisition, sale of assets, joint
venture, securities offering, bankruptcy, reorganization, liquidation,
dissolution, or other transition or if the ownership of all or
substantially all of our business otherwise changes, we may assign these
Terms of Service, in whole or in part, to a third party or parties in
connection with such transaction. You may not assign or delegate any
rights or obligations under the Terms of Service without our prior
written consent, and any unauthorized assignment or delegation by you is
void and ineffective.
10.2 Waiver and Severability
The failure of Mindr to exercise or enforce any right under, or any
provision of, these Terms of Service does not constitute a waiver of
such right or provision. If any provision of these Terms of Service is
found by a court of competent jurisdiction to be invalid or otherwise
unenforceable, you hereby agree with us that the court should try to
give effect to the intentions as reflected in the provision, and the
other provisions of these Terms of Service will remain in full force and
effect.
10.3 Force Majeure
Mindr will not be liable for any delay or failure to perform resulting
from unforeseen circumstances or causes outside our reasonable control,
including without limitation acts of God, war, terrorism, riots,
embargoes, acts of civil or military authorities, fire, floods,
accidents, network infrastructure failures, strikes, pandemics, or
shortages of transportation facilities, fuel, energy, labor or
materials.
10.4 Governing Law and Venue
These Terms of Service and any disputes related thereto are governed by
the laws of the State of Iowa, without regard to Iowa’s choice of law
provisions. You further consent to personal jurisdiction in the state
and federal courts of Iowa and waive any objections related to
jurisdiction, venue and forum non conveniens.
10.5 Notices
To provide us with notice under these Terms of Service, please use the
following notice information:
Mindr
Attn: Legal Dept, Privacy
12421 Meredith Drive, Suite 100
Urbandale, IA 50323
10.6 Updates to the Terms of Service; Additional
Requirements
We may, at our discretion, modify, supplement or remove portions of
these Terms of Service at any time by posting updates to the Terms of
Service in or through the Offerings and letting you know about such
updates by sending an email to the email address you provide us in
connection with your Account. Unless it states otherwise, each update to
the Terms of Service will be effective as of the date it is posted on or
within the Offerings, and you will be deemed to have accepted the update
if you continue to use an Offering on or after such effective
date.
From time to time we may also post additional requirements, rules or
policies that apply to use of some or all of our Offerings. These
requirements, rules and policies may be included in the Terms of Service
upon our posting them in or through the Offerings.
10.7 Copyright Notices/Complaints
If you believe that content available on the Offerings infringes your
copyright, please provide the following information under your signature
to the Mindr Legal Department at the address listed above:
1. A description of the copyrighted content that you claim has been infringed and description of the infringing activity, including where the content is located within the Offerings.
2. Your name, address, telephone number, and email address.
3. Please include the following statements: "I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law. I swear, under penalty of perjury, that the information in this notice is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
10.8 Entire Agreement.
These Portal Terms of Service, including Keepr’s Device Purchase Terms
(if you purchase a Keepr Device), General Privacy Notice and State
Privacy Notices, all additional requirements, rules or policies that we
post and specify as applicable to our Offerings, is the entire agreement
between Mindr and you regarding its subject matter and it supersedes any
prior or contemporaneous communications, representations, or agreements,
whether oral or written, between you and Mindr regarding such subject
matter.