February 06, 2024
February 06, 2024
This Terms of Service agreement (“Agreement”) governs your (“You”, or “Your”) use of services made available by Blacktail Mindhouse Private Limited. (“Mindhouse”, “We”, “Us”, or “Our”), websites at the URL https://www.betheshyft.com/, https://www.mindhouse.com/, https://www.dash.health/ and any other service, product, app, or website provided by Mindhouse that explicitly specified the applicability of Agreement (collectively, “Platform”) including, but not limited to, free trials, paid services, enterprise services and/or any other service made available by Mindhouse that indicate the applicability of this Agreement. Mindhouse is entering into this Agreement on behalf of itself and its Affiliates (as defined below). Please carefully read the contents of this Agreement before using the Platform or the Services (as defined below).
- EULA: https://www.betheshyft.com/end-user-licence-agreement/
If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity to these terms and conditions. If the individual accepting this Agreement does not have such authority or does not agree with this Agreement, such individual must not accept this Agreement and may not use the Services.
If You are an individual below the legal age of majority as per the Applicable Law (“Minor”), Your parent or legal guardian must read and accept this Agreement before You can use the Platform. By permitting a Minor to use the Services, a Minor’s parent or legal guardian agrees to agree to the terms and conditions of this Agreement, and further agrees to be responsible for all acts or omissions of such Minor on the Platform.
This Agreement is effective between You and Mindhouse as of the date on which You accept the Agreement.
“Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Applicable Law” means any law, rules, regulations, ordinances, orders, directives, codes, judgements, decrees, licenses, authorizations, and directives, as applicable from time to time.
“Content” means audio, video, text, interactive content, and other content.
“Confidential Information” means and includes all non-public and/or private information disclosed by the Disclosing Party to the Receiving Party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data. Confidential Information of Mindhouse includes non-public aspects of the software, Platform Content, documentation related to the Platform or Services, and Mindhouse’s technical know-how, materials, product development plans, marketing plans, and business information. Notwithstanding anything to the contrary above, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third Party without breach of any obligation owed to the Disclosing Party, or (iv) is independently developed without access to or use of any Confidential Information.
“Customer” means: (i) in the case of an individual accepting this Agreement on his or her own behalf, such individual; (ii) in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity on behalf of which such individual is accepting this Agreement; or (iii) in the case of legal guardian or parent accepting this Agreement on behalf of a Minor, such legal guardian or parent.
“Customer Content” means Content provided by the Customer to its Users on or through the Platform.
“Customer Data” means all electronics data or information submitted by Customer or its Users and stored by Mindhouse for Customer.
“Disclosing Party” means the party that discloses Confidential Information to the other Party.
“Force Majeure Event” means an event or effect that cannot be reasonably anticipated or controlled, which even by the exercise of reasonable diligence cannot prevent non-performance, and in particular, performance of the Services. These occurrences and events include, but are not limited to: acts of God; acts of government; acts of war; acts of public enemies; acts of terror; strikes or other labor problems; natural disaster; floods; fires; earthquakes; epidemic; pandemic; civil unrest; riots; explosions; outages; general Internet brown-outs or black-outs or shortage of bandwidth; hardware failures; hacking, denial of service or ransomware attacks; actions of the elements; or other similar causes beyond the control of Customer or Mindhouse in the performance of this Agreement.
“Free Service(s)” means Services that Mindhouse makes available to Customers at no cost, including but not limited to services provided for evaluation purposes without a fee.
“Malicious Code” means code, files, scripts, agents, or programs intended to cause damage or harm, including but not limited to, viruses, worms, time bombs, and Trojan horses.
“Platform Content” means Content, provided by Mindhouse to Customer or Customer’s Users, on or through the Platform, but not including Vendor Content, Customer Content, or User Content.
“Minor” has the meaning assigned to it above.
“Platform” means https://www.betheshyft.com/,https://www.mindhouse.com/,https://www.dash.health/, and any other service, product, app, or website provided by Mindhouse that explicitly specifies the applicability of this Agreement.
“Purchased Services” means Services that Customer purchases for a fee, as distinguished from Free Services.
“Receiving Party” means the party that received Confidential Information from the other party.
“Service” means all products, services, subscriptions, Mindhouse Content, and Vendor Content, that are availed by Customer or its Users, or provided to Customer or Customer’s Users by Mindhouse.
“User” means any individual or entity authorized by the Customer implicitly or explicitly to use the Service. In case the Customer is an individual using the Services on its own behalf, User means such Customer.
“User Content” means Content provided by Users on or through the Platform.
“Vendor” means third party(ies) contracted by Mindhouse to provide services on the Platform, including, but not limited to, trainer(s), nutritionist(s), and therapist(s). “Vendor Content” means Content provided by Vendor to Customer or Users on or through the Platform, or in the course of providing its services to the Customer or Users.
“You” or “Your” means Customer, Minor and/or User, as may be applicable depending upon the context in which it is used.
Provision of Purchased Services. Mindhouse will:
make the Services available to the Customer pursuant to this Agreement;
use commercially reasonable efforts to make the Purchased Services available except for (i) planned or unplanned downtime, and (ii) any Force Majeure Event under the terms of this Agreement; and
provide the Services in accordance with Applicable Laws and government regulations, and subject to use of the Services in accordance with this Agreement.
Mindhouse’s Personnel. Mindhouse will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Mindhouse’s obligations under this Agreement, except as otherwise specified explicitly in this Agreement.
Subscription Plans. Customer understands and agrees that the Services provided by Mindhouse are provided through subscription fee-based programs available on the Platform, as updated from time to time. On request, Mindhouse may also provide an option to undertake a single consultation.
Order Placement and Confirmation. To avail the Services, the Customer must purchase a subscription plan through the Platform (“Order”). Customer understands and agrees that the Order is an offer to Mindhouse to obtain the Services. Placing the Order, or paying for the Order, does not guarantee that the Services would be provided. Order confirmation is subject to acceptance by Mindhouse, at its sole discretion. Order confirmations will be provided by Mindhouse by way of sending an email to Customer’s registered email address.
Right to Cancel Order. Customer understands and agrees that Mindhouse may, at its sole discretion, cancel or not process Order(s). In the event that Mindhouse does not accept an Order, Mindhouse will return the subscription fees received by Mindhouse.
Right to Verify. You understand and agree that Mindhouse may, at its sole discretion, request You to furnish proof of identity prior to providing confirmation to Order to verify Your identity.
Use of Service.
Prior Consultation Requirement. In the event You (a) are expecting/suspecting to be pregnant, or (b) wear a pacemaker, or (c) suffer from epilepsy or seizures, or (d) have a history of mental illness, or (e) have eating disorder, or (f) have diabetes, or (g) have any other physical/ psychological/ emotional/ medical condition, or (h) are taking any strong medication, or (i) are above the age of 65 years, You must consult a medical health care provider prior to use of Services, and prior to following any advice provided by Mindhouse or a Vendor.
Usage Limits. Mindhouse may place technical or non-technical limitations on the use of the Service(s) by Customer and/or User, such as based on the plan or subscription or services purchased by a Customer or to protect the Platform or to ensure fair usage (“Usage Limits”). Mindhouse shall not be liable for any loss or damage faced by You or any third party as a result of any Usage Limits. Mindhouse may, where technically possible and feasible, offer to increase certain Usage Limits subject to payment of an additional fee. Customer understands that Mindhouse may refuse to increase a Usage Limit for any reason or no reason at its sole discretion.
You understand and agree that:
You shall be solely responsible and liable for Your conduct and breach of this Agreement by You, and if You are a company or any other entity You are also responsible and liable for the conduct of Your Users and breach of this Agreement by Your Users;
You shall use commercially reasonable efforts to prevent unauthorized access to or use of Services, and promptly, but in no case later than forty-eight (48) hours of gaining such knowledge, notify Mindhouse of any such unauthorized access or use;
You shall be solely liable and responsible for ensuring that Your account is not used by or on behalf of any third-party;
if You are a Customer, You shall be solely liable and responsible for Your handling of Your Users’ data;
if You are a Customer, You shall be solely responsible for compliance with any state or federal laws applicable to use of the Service and the Platform by You and/or Your Users;
You will ensure that the details specified in the Order are accurate. In an event where the details are incorrect, it is Your sole responsibility to notify Mindhouse;
You will provide true, accurate, and current information as requested by Mindhouse at any time, and promptly and regularly update Your information to maintain its accuracy and completeness. Mindhouse reserves the right to suspend or terminate Your account and refuse any and all current or future use of the Service, in whole or in part, by You for providing any information that is untrue, inaccurate, incomplete or not current;
Certain Services may be provided by Vendor(s). Under no circumstances will Mindhouse be liable or responsible for any action or inaction of any Vendor (including but not limited to cancellations, advice provided, breach of Applicable Law and/or this Agreement, or any other activity). All disputes between You and the Vendor must be resolved between You and such Vendor only; and
the Services include certain inherent risks that cannot be eliminated from the Services. You agree and acknowledge to undertake the risks and hereby release Mindhouse from any and all liabilities arising out of such risks.
You further understand and agree that:
You may book a slot for the Service in advance as per the time period specified by Mindhouse on the Platform. You agree and acknowledge that Mindhouse may, at its sole discretion, without prior notification, modify the time, date or duration of Your slot and/or the available slots;
You may only cancel or reschedule an appointment up to a certain time limit, as specified by Mindhouse, before the scheduled appointment. On expiration of such time limit, You may not cancel or reschedule the appointment. In such an event, You may contact Us and Mindhouse may, but has no obligation to, consider such requests;
Mindhouse may cancel or reschedule any appointments booked by User, and Mindhouse shall not be liable for any loss, damage caused to User due to such cancellation or reschedule;
Mindhouse reserves a right to charge a cancellation fee for cancellation of appointments;
Service(s) may contain features designed to interoperate with non-Mindhouse applications. Mindhouse cannot guarantee the continued availability of such features, and may cease providing them without notice, without assigning any reason and without entitling Customer to any refund, credit, or other compensation. We may, for example and without limitation, cease offering such a feature if the provider of a non-Mindhouse application ceases to make the non-Mindhouse application available for interoperation with the corresponding features in a manner acceptable to Mindhouse; and
Any use of the Services in breach of the foregoing by You that in Mindhouse’s judgment threatens the security, integrity, or availability of Mindhouse’s services, may result in Mindhouse’s immediate suspension of the Services; however, Mindhouse will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to any such suspension.
Platform and Services Restrictions. You shall not:
share an account with any third party, share login credentials of an account with any third party, or use any third party’s account to access the Service;
misrepresent the age to access Services intended for users who are of or above legal age of majority;
use the Services under the influence of heavy medication(s) (without prior consultation), drugs, alcohol, or any other inhibitors or prohibited substances;
use a Service to store or transmit Malicious Code;
interfere with or disrupt the integrity or performance of any Service or third-party data contained therein;
misuse Services by interfering with their normal operation or attempting to access them using a method other than through the interfaces and instructions provided by Mindhouse;
attempt to gain unauthorized access to any Service or Platform or its related systems or networks;
attempt, permit, or undertake direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit, or use any Services to access or use any of Mindhouse’s or Vendor’s intellectual property except as permitted under this Agreement;
except to the extent permitted by Applicable Law, disassemble, reverse engineer, or decompile a Service or Platform or access it to (i) build a competitive product or service, (ii) build a product or service using similar ideas, features, functions or graphics of the Service or Platform, (iii) copy any ideas, features, functions or graphics of the Service or Platform, or (iv) determine whether the Services or Platform are within the scope of any patent; and
engage in abusive or excessive usage of the Services or Platform, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. Mindhouse reserves the right to notify You of Your abusive or excessive usage to provide You with an opportunity to reduce such usage to a level acceptable to Mindhouse.
is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person.
Legal Restrictions. You shall not:
host, display, upload, modify, publish, transmit, store, update, or share any information that:
belongs to another person and to which You does not have any right;
is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy, including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambing, or otherwise inconsistent with or contrary to the laws in force;
is harmful to any child;
infringes any patent, trademark, copyright or other proprietary rights;
violates any law for the time in force;
deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact;
impersonates another person;
threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting other nation;
contains software virus or any other computer code, file or program designated to interrupt, destroy or limit the functionality of any computer resource; and/or
is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person.
Modifications to the Service.
Changes to the Services. Mindhouse may add, alter, or remove features from any Service, at any time at its sole discretion. Mindhouse may limit, suspend or discontinue a Service at any time in its sole discretion. Provided, however, that no such addition, alteration, removal, limitation, suspension, or discontinuation, will result in an overall decrease in the functionality available to, and used by, Customer during the then ongoing term of this Agreement. Notwithstanding anything above, Mindhouse may undertake or implement any such alteration, removal, limitation, suspension, or discontinuation, if required for compliance with the Applicable Law, law enforcement, court order, third-party intellectual property rights, or other legal obligation. Where possible and feasible, Mindhouse will provide reasonable notice of not less than two weeks for any such suspension or discontinuation.
New Services. Mindhouse may introduce new products and services to complement the existing Services. If such new services are not included in Your existing Purchased Services, Mindhouse reserves the right and sole discretion to decide whether or not the new services will be made available to Customer, whether or not such new services will be made available as part of Customer’s existing subscription, and whether or not the availability of such new services shall be subject to payment of an additional charge. Customer may, at Customer’s sole discretion, choose to provide comments or feedback to Mindhouse. Mindhouse may, but shall have no obligation to, use the comments or feedback to improve Service(s) offered by Mindhouse.
Free Services. Mindhouse may provide Free Services to Customer, including but not limited to free trials of certain Services for the purpose of evaluation, subject to the terms and conditions of this Agreement.
Free Services are provided without charge up to certain limits, and usage beyond those limits will require Customer to purchase additional resources or Services. Customer acknowledges that the provision of Free Services is subject to the limits placed upon them by Mindhouse and agrees not to attempt to circumvent any such limits. Customer should review the applicable Service's documentation during the trial period to become familiar with the features and functions of the Service before making a purchase. Mindhouse may terminate Customer's access to Free Services or any part thereof at any time without prior notice and without liability to Customer or any third party, including but not limited to Customer’s Users.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, FREE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, AND MINDHOUSE DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. CUSTOMER AGREES THAT MINDHOUSE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY KIND WITH RESPECT TO THE FREE SERVICES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. WITHOUT LIMITING THE FOREGOING, MINDHOUSE AND ITS AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR, OR (C) DATA OR INFORMATION PROVIDED BY MINDHOUSE WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 13, THE CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO MINDHOUSE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF THE CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
You acknowledge and agree that any termination of access to the Free Services may result in the loss of features or capacity of the Free Services. Mindhouse may modify or discontinue the provision of Free Services (or any part thereof) at any time without notice, and that Mindhouse shall not be liable to You or any third party for such modification or discontinuation. Mindhouse may, in its sole discretion, elect to provide You with an opportunity to retrieve data from the Free Services following any termination of the Free Services.
Fee. Customer will pay all fees as specified by Mindhouse on its Platform. Except as otherwise agreed by and between parties, (i) fees are based on Services availed, and (ii) payment obligations are non-cancelable and fees are non-refundable.
Change in Fee. Mindhouse may change the fees charged for the Services at any time and from time to time. The changes will become effective only at the end of the then-current billing cycle of the applicable Purchased Services. Mindhouse will provide You with reasonable prior written notice of any change in fees to give You an opportunity to cancel any on-going subscriptions before the price change becomes effective.
Promotional Prices and Discounts: Promotional prices, including but not limited to reduced prices, promo-codes, vouchers, and discount coupons, are for one-time use only. Promotional prices will not be applicable at the time of renewal of Your subscriptions, or subsequent payments or purchases. Promotional prices cannot be combined, i.e. only one of the reduced price, promo-code, voucher, or discount coupon, can be used for a single transaction.
Taxes. Mindhouse’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, goods and service, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Mindhouse has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 7, Mindhouse will invoice Customer and Customer will pay that amount unless Customer provides Mindhouse with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Mindhouse is solely responsible for taxes assessable against it based on its income, property, and employees.
Proprietary Rights and Licenses.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, Mindhouse, its Affiliates, its licensors and content providers reserve all of their rights, titles, and interests in and to the Services, logos, software, Platform Content, and other materials created by them, including all of their related intellectual property rights. Mindhouse owns all rights, titles, and interests in and to Mindhouse’s registered and unregistered, domestic and foreign trademarks, service marks, trademark applications, service mark applications, trade names, patents, patent applications, copyrights, copyright applications, discoveries, know-how and trade secrets of and relating to the Platform and Services. You agree not to remove and to always include any and all copyright and intellectual property notices attached to intellectual property owned by or otherwise licensed to You by Mindhouse, its Affiliates, its licensors and/or its content providers, including but not limited to all templates and learning materials. No one may copy, reproduce, transmit, post, distribute or create, derivative works from the Platform or Services without express, prior written authorization from Mindhouse. No rights are granted to You hereunder other than as expressly set forth herein.
License by Customer to Mindhouse. You hereby grant to Mindhouse, and its Affiliates a worldwide, royalty-free, non-exclusive, limited license to host, copy, use, transmit, display and distribute any intellectual property as necessary to perform the obligations under this Agreement. In addition to the foregoing, Customer hereby grants to Mindhouse a non-exclusive, worldwide, irrevocable, royalty-free right to use Customer’s name, logo, mark and/or testimonials in marketing materials, including but not limited to the Platform.
License by Customer and User to Use Feedback. Mindhouse may occasionally request feedback from You regarding Your use of the Service. You grant to Mindhouse, its Affiliates, assignees, subsidiaries, and successors a worldwide, perpetual, irrevocable, and royalty-free license to use and incorporate into its products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by You relating to the operation of Mindhouse’s or its Affiliates’ services without any obligations to You, including but not limited to acknowledgement, limitation, or notice of any kind.
Confidentiality and Non-Disclosure.
Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than a reasonable degree of care to: (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have confidentiality obligations not materially less protective of the Confidential Information than those herein. Notwithstanding anything to the contrary above, Mindhouse may disclose: (a) the terms of this Agreement to a subcontractor or independent third-party service provider(s) to perform Mindhouse’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein; and/or (b) as required or permitted by Section 8.2 above and/or Section 8.3 above.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, law enforcement, or a court order, to do so, provided that the Receiving Party gives: (a) prior notice of the compelled disclosure to the Disclosing Party (to the extent legally permitted); and (b) reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. Mindhouse may disclose Confidential Information of the Customer to the extent compelled by law, law enforcement, or a court order, to do so. If the Receiving Party is compelled by law or a legal proceeding to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
Additional terms for mobile application
E-License to the App. Mindhouse may make available software to access the Service via an App. To use the App, You must have a mobile device that is compatible with the App. Mindhouse does not warrant that the App will be compatible with Your mobile device. You may use mobile data in connection with the App and may incur additional charges from Your wireless provider for these services. You agree that You are solely responsible for any charges. Subject to the terms of this Agreement, Mindhouse hereby grants You a non-exclusive, non-transferable, non-sublicensable, and revocable license to use a complied code copy of the App for Your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the App, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sub-license, distribute or otherwise transfer the App to any third party or use the App to provide time sharing or similar services for any third party; (iii) make any copies of the App; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the App, features that prevent or restrict use of copying of any content accessible through the App, or features that enforce limitation on use of the App; and/or (v) delete the copyright and other proprietary rights notice on the App. You acknowledge that Mindhouse may from time to time issue upgraded versions of the App and may automatically electronically upgrade the version of the App that You are using on Your mobile device. You consent to such automatic upgrading on Your mobile device and agree that the terms and conditions of this Agreement will apply to such upgrades. Any third-party code that may be incorporated in the App is covered by the applicable open-source or third-party license end user license agreement, if any, authorizing use of such code. The foregoing license grant is not a sale of the App or any copy thereof, and Mindhouse or its third-party partners or suppliers retain all rights, titles, and interest in the App (and any copy thereof). Any attempt by You to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in this Agreement, is void. Mindhouse reserves all rights not expressly granted under this Agreement.
Additional Terms for App from Apple Store. The following applies to any App You acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between You and Mindhouse, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to You; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Mindhouse 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 Apple-Sourced Software or Your possession and/or use of the Apple-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Mindhouse as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Mindhouse, 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 these Terms. You and Mindhouse acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as relates to Your license of the Apple-Sourced Software, and that, upon Your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to Your license of the Apple Sourced Software against You as a third-party beneficiary thereof.
Mobile Applications from Google Play Store. The following applies to any App You acquire from the Google Play Store (“Google Sourced Software”): (i) You acknowledge that these Terms are between You and Mindhouse only, and not with Google, Inc. (“Google”); (ii) Your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where You obtained the Google-Sourced Software; (iv) Mindhouse, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google Sourced Software or these Terms; and (vi) You acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to Mindhouse’s Google-Sourced Software.
Representations and Warranty Disclaimers.
Representations. Each party represents that it has (i) no legal or contractual obligations that prevent it from entering into this Agreement; and (ii) the legal power to do so. Each individual executing this Agreement on behalf of a party hereby represents and warrants that it is authorized to do so on behalf of such party.
Mindhouse Warranties. Mindhouse warrants that during an applicable subscription term (a) this Agreement will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer’s data, (b) Mindhouse will not materially decrease the overall security of the Services, (c) the Services will be provided in a workmanlike manner that conforms to the relevant, prevailing industry standard, and (d) Mindhouse will not decrease the overall functionality of the Services. For any breach of the warranty above, Customer’s exclusive remedies are those described in Section 14.3 and 14.4 below.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MINDHOUSE DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND MINDHOUSE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MECHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOTMENT, DELAY IN SERVICES, RESULTS OBTAINED FROM USING THE PLATFORM, ERRORS OR DEFFECTS IN THE PLATFORM OR SERVICES, OR NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. FREE SERVICES ARE PROVIDED “AS IS”, AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. MINDHOUSE EXPRESSLY DISCLAIMS THAT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, ERROR-FREE, ACCURATE, OR RELIABLE. ANY CONTENT DOWNLOADED THROUGH THE PLATFORM, IS DONE AT YOUR OWN RISK AND YOU SHALL REMAIN SOLELY RESPONSIBLE FOR ANY DAMAGE CAUSED BY SUCH CONTENT, INCLUDING ANY LOSS OF DATA OR DAMAGE CAUSED TO YOUR MOBILE DEVICE.
Medical Disclaimer. MINDHOUSE DOES NOT MAKE ANY KIND OF CLAIM, REPRESENTATION, OR GUARANTEE THAT THE SERVICES OFFERED WILL PROVIDE A THERAPUTIC BENEFIT TO YOU. MINDHOUSE IS NOT A HEALTH CARE PROVIDER OR A MEDICAL SERVICE PROVIDER. THE SERVICES PROVIDED ARE NOT A REPLACEMENT OF ANY FORM OF MEDICAL ADVICE OR THERAPY. THE SERVICES PROVIDED ARE NOT INTENTED TO CURE, TREAT, OR DIAGNOSE ANY MEDICAL CONDITIONS WHICH YOU MAY HAVE.
Indemnity by Mindhouse. Mindhouse will defend at its expense any cause of action brought against You, to the extent that such cause of action is based on a claim that the Service, as hosted by Mindhouse for Customer, infringes a patent, copyright, or trade secret of a third party. Mindhouse will pay those costs and damages finally awarded against Customer pursuant to any such claim or paid in settlement of any such claim if such settlement was approved in advance by Mindhouse. The Customer may retain its own counsel at the Customer’s own expense.
No Liability. Mindhouse will have no liability for any claim of infringement based on: (i) Services which have been modified by parties other than Mindhouse where the infringement claim would not have occurred in the absence of such modification; (ii) Your use of the Service in conjunction with data or third-party software where use with such data or third-party software gave rise to the infringement claim; (iii) Your use of the Service outside the permitted scope of the Agreement; (iv) use of Service(s) provided for no fee including but not limited to Trial Service; and/or (v) breach of Agreement by You.
Remedies. In the event a claim is made or likely to be made, Mindhouse may (i) procure for Customer the right to continue using the Service under the terms of the Agreement, or (ii) replace or modify the Service to be non-infringing without a material decrease in functionality. If these options are not commercially reasonably available, Mindhouse or Customer may terminate Customer’s subscription to the affected Service upon written notice to the other party.
Indemnity by Customer. Customer will defend, indemnify, and hold Mindhouse and its officers, directors, employees, consultants, sub-contractors and/or agents harmless from and against any and all damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees), and settlement amounts incurred in connection with any claim arising from or relating to Customer’s: (i) breach of any of its obligations set forth in this Agreement; (ii) actual or alleged use of the Services in violation of this Agreement or Applicable Law by Customer or User; or (iii) any actual or alleged infringement or misappropriation of third party intellectual property rights arising from data provided to Mindhouse by the Customer or otherwise added into the Service by the Customer or User.
Indemnification Procedures. Each indemnifying party’s obligations as set forth in this Section 12 are subject to the other party: (i) giving the indemnifying party prompt written notice of any such claim or the possibility thereof; (ii) giving the indemnifying party sole control over the defense and settlement of any such claim; and (iii) providing full cooperation in good faith in the defense of any such claim. Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.
Exclusive Remedy. This Section 12 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this Section 12.
Limitation of Liability.
Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 7 ABOVE. MINDHOUSE’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT IS LIMITED TO DIRECT MONETARY DAMAGES. IN NO EVENT WILL MINDHOUSE BE LIABLE FOR PROVIDING SUBSTITUTE SERVICES.
Exclusion of Consequential and Related Damages. IN NO EVENT SHALL MINDHOUSE, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, VENDORS, OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICES (OR ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SERVICES): (1) FOR ANY LOST PROFITS, REVENUES, DATA, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, (2) FOR THE USE OR INABILITY TO USE THE SERVICE, (3) FOR ANY INACCURACY, ERROR OR OMISSION IN SERVICES, OR (4) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), EVEN IF MINDHOUSE OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF THE ABOVE OR IF MINDHOUSE’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS IN ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Essential Basis. CUSTOMER ACKNOWLEDGES THAT MINDHOUSE HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY AND THE SAME FORM AN ESSENTIAL BASIS FOR THE BARGAIN BETWEEN THE PARTIES.
Terms and Termination.
Term of the Agreement. This Agreement commences on the date Your first accept it and continues until the subscription has been terminated by either party under the terms of this Agreement. Services purchased renew automatically until the subscription is cancelled by the Customer or this Agreement is terminated by either party.
Termination by Us. Mindhouse may terminate this Agreement, Purchased Service(s), and/ or Free Services under this Agreement for a cause (a) upon 30 days written notice to Customer of a breach of this Agreement by Customer if such breach remains uncured at the expiration of such period, or (b) immediately upon sending a written notice if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, assignment for the benefit of creditors, or (c) immediately upon breach of obligations under Section 9 above, or (d) immediately upon breach of obligations under Section 8 above, or (e) upon 30 days written notice to Customer without assigning any reason.
Termination by Customer. Customer may terminate this Agreement for cause (a) upon 30 days’ written notice to Mindhouse of a material breach of this Agreement by Mindhouse if such breach remains uncured at the expiration of such period, or (b) immediately upon sending a written notice if Mindhouse becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
Refund or Payment Upon Termination. If this Agreement is terminated by Customer or Mindhouse in accordance under Section 14.2 or 14.3 above, then Mindhouse shall refund to Customer any prepaid fees covering the remainder of the term after the effective date of termination on a pro-rated basis. In no circumstances shall Mindhouse be liable to refund any amount to Customer for termination of this Agreement or any Service by Customer except if such termination has been done by Customer or Mindhouse under Section 14.2 or 14.3 above. Termination of this Agreement does not relieve Customer of its obligation to pay for Services provided by Mindhouse prior to the effective date of such termination.
Surviving Provisions. Sections, clauses and provisions of this Agreement that by their nature are intended to survive termination or expiration, will survive any termination or expiration of this Agreement for a period of three (3) years, except as otherwise provided in this Agreement or required by Applicable Law, including but not limited to the following Sections: 2.2, 4.4.1, 5, 6.3.2, 7, 8, 9, 11, 12, 13, 14.4, 14.5, 15, and 16.
Good Faith Consultation. The parties agree that they will attempt to resolve through good faith consultation, any dispute or difference in respect of, concerning, or connected with, the interpretation of this Agreement or performance of obligations under this Agreement, or otherwise arising out of this Agreement. The parties agree that such good faith consultation will begin promptly after either party has delivered a written request for such consultation to the other party.
Arbitration. In the event that the parties are not able to resolve a dispute within thirty (30) days in accordance with the mechanism provided above, the dispute shall be settled by a single arbitrator appointed by mutual consent of both parties. In the event that the parties to this Agreement fail to appoint an arbitrator within fifteen (15) days from the date of expiry of the mechanism specified above, an arbitrator may be appointed by a court of competent jurisdiction. The venue and seat of arbitration shall be in Delhi, India, only. The decision of the arbitrator shall be binding upon the parties, and can be enforced in a court of competent jurisdiction. The clause constitutes a binding consent by the parties for any proceedings in terms hereof and no party shall be entitled to withdraw from the proceedings.
Modification of this Agreement. We reserve all rights to modify the Agreement at Our sole discretion from time to time. You shall be responsible for reviewing this Agreement from time to time for modifications. The last date of modification of this Agreement will be displayed on this page. We may, for Our convenience only and without waiving Your obligation to periodically review the Agreement, attempt to notify You of significant modifications to this Agreement through the Platform, in an email notification, or through reasonable means. The modification will be in effect after the completion of fourteen (14) days from the date when the notification was posted or sent, except that the following categories of modification may be made effective immediately: (a) modifications required to provide new features without negatively affecting Your rights under this Agreement; (b) modifications made to correct typographical errors; and/or (c) modifications made to comply with legal obligations, including but not limited to Our or Your obligations under the Applicable Law. You understand and agree that Your registration on, or continued access or use of, the Platform beyond the effective date of such modifications shall be deemed to be Your acceptance of all modifications.
Modification of Platform. We may, from time to time, at Our sole discretion and without any notification, add new features, remove or stop offering old features, or modify existing features of the Platform.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such termination, Mindhouse will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
Force Majeure. Upon the occurrence of a Force Majeure Event, the parties agree to excuse performance under this Agreement and not hold the other liable for the delay in or failure of performance under this Agreement. Any such delay in or failure of performance shall not constitute a default or give rise to any liability for damages.
Entire Agreement. This Agreement is the entire agreement between Mindhouse and Customer regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter.
Notices. Notices by Mindhouse under this Agreement may be shown in the user interface of the Platform, or sent to the contact information provided by You. Notices by You to Mindhouse may be sent to the contact information provided in Section 15.11 below.
Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right unless otherwise agreed between the parties in writing
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
Relationship of Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
Governing Law and Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of India, without giving effect to any principles of conflict of law. The courts of Delhi, India shall have sole and exclusive jurisdiction for all disputes arising out of the Agreement. (.
Contact Us. For any questions or concerns related to the Agreement, please contact Us at email@example.com.