THIS NAKED MIND, LLC
TERMS OF SERVICE AGREEMENT
Effective Date: June 24, 2020
This Terms of Service Agreement (“Agreement”) is a binding legal contract between you and This Naked Mind, LLC (“This Naked Mind,” “we,” “us,” or “our”), regarding your use of This Naked Mind’s websites located at https://thisnakedmind.com, https://upliftgroups.com and https://learn.thisnakedmind.com on all platforms (the “Services”).
By using the Services, you agree to the terms and conditions of this Agreement and the Privacy Policy. The Privacy Policy is part of this Agreement and incorporated by reference herein. If you do not agree to any of these terms, please do not use the Services.
You affirm that you are 18 or more years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement.
The Services are controlled and offered by This Naked Mind from its facilities in the United States of America. This Naked Mind makes no representations that the Services are appropriate for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with their local law.
Nothing in this Agreement shall be deemed to confer any third-party rights or benefits. You and This Naked Mind are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
1. DEFINITIONS
a. Customer: a person or entity that is registered with This Naked Mind to use the Services.
b. User: any person or entity a Customer grants access to the Services.
c. You: a This Naked Mind Customer or other person or entity who visits our Services.
d. Customer Content: information, messages, files, or any other content that Users submit to the Services.
2. GENERAL USE OF THE SERVICES
This Naked Mind hereby grants you a revocable, non-transferable, and non-exclusive permission to access and use the Services as set forth in this Agreement, provided that:
a. You agree not to distribute in any medium any part of the Services, including but not limited to This Naked Mind Content (defined below) and Customer Content (defined above) without This Naked Mind’s prior written authorization.
b. You agree not to alter or modify any part of the Services, including but not limited to, This Naked Mind’s technologies.
c. You agree not to access This Naked Mind Content and Customer Content through any technology or means other than as authorized by this Agreement or a written agreement between you and This Naked Mind.
d. You agree not to use the Services for any commercial use without the prior written authorization of This Naked Mind. Prohibited commercial uses include, but are not limited to, any of the following actions taken without This Naked Mind’s express approval:
b. You agree not to alter or modify any part of the Services, including but not limited to, This Naked Mind’s technologies.
c. You agree not to access This Naked Mind Content and Customer Content through any technology or means other than as authorized by this Agreement or a written agreement between you and This Naked Mind.
d. You agree not to use the Services for any commercial use without the prior written authorization of This Naked Mind. Prohibited commercial uses include, but are not limited to, any of the following actions taken without This Naked Mind’s express approval:
i. Sale of access to the Services, This Naked Mind Content, or Customer Content on all platforms;
ii. Use of the Services, This Naked Mind Content, or Customer Content for the purpose of gaining advertising or subscription revenue;
iii. The sale of advertising, on the Services or any third-party Services, targeted to the content of specific This Naked Mind Content or Customer Content;
iv. Any use of the Services, This Naked Mind Content, or Customer Content that This Naked Mind finds, in its sole discretion, has the effect of competing with or displacing the market for the Services, This Naked Mind Content, or Customer Content.
iii. The sale of advertising, on the Services or any third-party Services, targeted to the content of specific This Naked Mind Content or Customer Content;
iv. Any use of the Services, This Naked Mind Content, or Customer Content that This Naked Mind finds, in its sole discretion, has the effect of competing with or displacing the market for the Services, This Naked Mind Content, or Customer Content.
e. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Services in a manner that sends more request messages to the This Naked Mind servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser.
f. You will otherwise comply with the terms and conditions of this Agreement, and all applicable local, national, and international laws and regulations.
g. This Naked Mind reserves the right to discontinue any aspect of the Services or services at any time.
4. CUSTOMER CONTENT AND USER CONDUCT
Users may submit information, messages, files, or any other content (collectively referred to as “Customer Content”) to This Naked Mind. Customers and Users agree to:
a. be solely responsible for Customer Content and the consequences of posting or publishing it;
b. comply with the terms of this Agreement;
c. comply with all applicable laws and regulations;
d. have all the necessary licenses, rights, consents, and permissions to submit Customer Content to the Services;
e. keep passwords and all other login information confidential;
f. use commercially reasonable efforts to prevent unauthorized access to or use of the Services;
g. notify This Naked Mind if there is any illegal or unauthorized activity or a security breach involving your account;
h. not submit material that is copyrighted, trademarked, protected by trade secret or confidentiality, or otherwise subject to third-party proprietary rights, including privacy, personality and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant This Naked Mind all of the license rights granted herein.
i. share, transfer, or other provide access to an account designated for you to another person or entity;
j. not access the Services in order to create a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Services;
k. not send unsolicited communications, promotions, advertisements, or spam;
l. not impersonate any person or organization; and
m. upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or any other harmful technology that unlawfully accesses or downloads content or information stored within the Services.
You understand that whether or not Customer Content is published, This Naked Mind does not guarantee any confidentiality with respect to any Customer Content. You retain ownership of all copyrights you may have in your Customer Content. However, you grant This Naked Mind a perpetual, non-exclusive, fully paid and royalty-free, worldwide license to This Naked Mind to use, remove, copy, reproduce, process, transmit, excerpt, publish, distribute, create derivative works of, host, index, cache, tag, encode, modify, and adapt in any form or media now known or hereinafter developed, any Customer Content posted to This Naked Mind. This Naked Mind does not endorse any Customer Content or any opinion, recommendation, or advice expressed therein, and This Naked Mind expressly disclaims any and all liability in connection with Customer Content. This Naked Mind does not permit copyright infringing activities and infringement of intellectual property rights on its Services, and This Naked Mind will remove all This Naked Mind Content and Customer Content if properly notified in a manner consistent with law and This Naked Mind’s Copyright Infringement Notification policy that such This Naked Mind Content or Customer Content infringes on another’s intellectual property rights. This Naked Mind reserves the right to remove This Naked Mind Content and Customer Content without prior notice. If you provide feedback to us regarding the Services, This Naked Mind Content, or Customer Content (“Feedback”), you authorize us to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to us perpetual and irrevocable license to use the Feedback for any purpose.
5. COPYRIGHT INFRINGEMENT
a. If you are a copyright owner or an agent thereof and believe that any Customer Content or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
iv. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; v. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. This Naked Mind’s designated Copyright Agent to receive notifications of claimed infringement can be contacted at: compliance@thisnakedmind.com.
ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
iv. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; v. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. This Naked Mind’s designated Copyright Agent to receive notifications of claimed infringement can be contacted at: compliance@thisnakedmind.com.
You acknowledge that if you fail to comply with all of the requirements of this Section 4(a), your DMCA notice may not be valid.
b. Counter-Notice. If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:
i. Your physical or electronic signature;
ii. Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
iii. A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
iv. Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Denver, Colorado and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
ii. Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
iii. A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
iv. Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Denver, Colorado and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, This Naked Mind may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at This Naked Mind’s sole discretion.
c. Repeat Infringers. This Naked Mind will terminate the access privileges of any user whom it deems, in its sole authority, has repeatedly infringed the copyright rights of others.
7. MEDICAL DISCLAIMER
You agree that This Naked Mind is not comprised of licensed medical or psychological professionals and the information presented on the Services is for informational and educational purposes only and is not intended to diagnose, treat, cure, or prevent any disease. The information on the Services is in no way intended as medical advice, substance abuse counseling, psychological counseling, or as a substitute for medical or any other professional counseling. The information should be used in conjunction with the guidance and care of a physician. Consult a physician before beginning this program as you would any medical, dietary, or fitness program. You agree your use of the information on the Services is at your own risk and that This Naked Mind does not guarantee results.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL THIS NAKED MIND, ITS MANAGERS, MEMBERS, EMPLOYEES, LICENSORS, SUPPLIERS, OR AGENTS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES, THIS NAKED MIND CONTENT, CUSTOMER CONTENT OR THE PRODUCTS AND SERVICES AVAILABLE ON THE SERVICES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
YOU AGREE THAT THE MAXIMUM TOTAL LIABILITY OF THIS NAKED MIND, ITS MANAGERS, MEMBERS, EMPLOYEES, LICENSORS, SUPPLIERS, OR AGENTS TO YOU FOR ANY CLAIM UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL TOTAL AMOUNT RECEIVED BY THIS NAKED MIND FROM YOU TO ACCESS THE SERVICES AND/OR USE THE SERVICES. IF YOUR USE OF THE SERVICES, SERVICES, AND/OR GOODS RESULTS IN THE NEED FOR SERVICING, REPAIR, OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ALL COSTS THEREOF. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9. INDEMNITY
You agree to defend, indemnify, and hold harmless This Naked Mind, its managers, members, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Services; (ii) your violation of any term of this Agreement; (iii) your violation of any third-party rights, including without limitation any copyright, property, or privacy right; or (iv) any claim that Customer Content caused damage to a third party or to This Naked Mind. This defense and indemnification obligation will survive this Agreement and your termination of use of the Services.
11. THIRD-PARTY SITES
The Services may contain links to third-party websites that are not owned or controlled by This Naked Mind. This Naked Mind has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party website. In addition, This Naked Mind will not and cannot censor or edit the content of any third-party site. BY USING THE SERVICES, YOU EXPRESSLY RELIEVE THIS NAKED MIND FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY SERVICES.
12. NOTICE REGARDING ELECTRONIC PAYMENT VENDORS
Users should be aware some payments may be processed through electronic payment vendors. This Naked Mind may also provide applications and other services to merchants related to payment processing. Payments may not be processed for certain activities, such as for illegal or other prohibited activities. If you have a question as to whether a payment will be accepted, we encourage you to check the policies of the applicable vendor.
Your relationship with the electronic payment vendors is separate from your relationship with This Naked Mind and is governed by the terms and conditions contained in such vendor’s agreement. Such terms and conditions are available at the respective vendor’s website. This Naked Mind is not responsible for the actions or omissions of any third party payment processor.
13. SUBMISSIONS AND PRIVACY
In the event that you submit or post any ideas, creative suggestions, designs, photographs, information, advertisements, data or proposals, including ideas for new or improved products, services, features, technologies or promotions, you expressly agree that such submissions will automatically be treated as non-confidential and non-proprietary and will become the sole property of This Naked Mind without any compensation or credit to you whatsoever. This Naked Mind and its affiliates shall have no obligations with respect to such submissions or posts and may use the ideas contained in such submissions or posts for any purposes in any medium in perpetuity, including, but not limited to, developing, manufacturing, and marketing products and services using such ideas.
14. TYPOGRAPHICAL ERRORS
In the event a product and/or service is listed at an incorrect price or with incorrect information due to typographical error, we shall have the right to refuse or cancel any orders placed for the product and/or service listed at the incorrect price. We shall have the right to refuse or cancel any such order whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account or other payment account in the amount of the charge.
15. USERS UNDER 13 YEARS OF AGE
Our Services are not directed to persons under the age of 13. If you become aware that your child has provided us with personal information without your consent, please contact us at compliance@thisnakedmind.com. We do not knowingly collect personal information from children under the age of 13. If we become aware that a child under the age of 13 has provided us with personal information, we take steps to remove such information. By using the Services, you are representing to us that you are not under the age of 13. If you are under 13 years of age, you are not authorized to install and use the Services and must immediately delete it from your devices.
16. ASSIGNMENT
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by This Naked Mind without restriction.
17. GENERAL
By using the Services, you consent to receiving electronic communications from This Naked Mind. These communications will include notices about your account and information concerning or related to the Services and/or This Naked Mind’s products and services. You agree that any notice, agreement, disclosure or other communication that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
18. APPLICABLE LAW
This Agreement shall be governed by the internal substantive laws of the State of Colorado, without respect to its conflict of laws principles. By accessing the Services, the parties consent to the jurisdiction of the State of Colorado.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS WE AND YOU HAVE AGAINST EACH OTHER ARE RESOLVED. SECTION 19 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT REQUIRES YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION AND LIMITS YOUR RIGHT TO SEEK RELIEF BY JURY TRIAL OR CLASS ACTION.
19. AGREEMENT TO ARBITRATE
This section applies to any dispute EXCEPT IT DOESN’T INCLUDE A DISPUTE RELATING TO CLAIMS FOR INJUNCTIVE OR EQUITABLE RELIEF REGARDING THE ENFORCEMENT OR VALIDITY OF YOUR OR THIS NAKED MIND’S INTELLECTUAL PROPERTY RIGHTS. The term “dispute” means any dispute, action, or other controversy between you and This Naked Mind concerning the Services or this agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.
19.1 Notice of Dispute
In the event of a dispute, you or This Naked Mind must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute via email to: dispute@thisnakedmind.com. This Naked Mind will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address. You and This Naked Mind will attempt to resolve any dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, you or This Naked Mind may commence arbitration.
In the event of a dispute, you or This Naked Mind must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute via email to: dispute@thisnakedmind.com. This Naked Mind will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address. You and This Naked Mind will attempt to resolve any dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, you or This Naked Mind may commence arbitration.
19.2 Binding Arbitration
If you and This Naked Mind don’t resolve any dispute by informal negotiation, any other effort to resolve the dispute will be conducted exclusively by binding arbitration as described in this section. You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. The dispute shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration will be conducted in Denver, Colorado, and judgment on the arbitration award may be entered into any court of competent jurisdiction. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by Colorado law. Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration. Any and all legal, accounting, and other costs, fees, and expenses incurred by the prevailing party shall be borne by the non-prevailing party.
If you and This Naked Mind don’t resolve any dispute by informal negotiation, any other effort to resolve the dispute will be conducted exclusively by binding arbitration as described in this section. You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. The dispute shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration will be conducted in Denver, Colorado, and judgment on the arbitration award may be entered into any court of competent jurisdiction. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by Colorado law. Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration. Any and all legal, accounting, and other costs, fees, and expenses incurred by the prevailing party shall be borne by the non-prevailing party.
19.3 Prohibition of Class and Representative Actions and Non-Individual Actions
You and This Naked Mind agree that either may bring claims against the other only on an individual basis and not as part of any purported class or representative action or proceeding unless both you and This Naked Mind agree otherwise. The arbitrator may not consolidate or join more than one person’s or party’s claims and may not preside over any form of a consolidated, representative or class proceeding. Also the arbitrator may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s claim(s). Any relief awarded cannot affect other This Naked Mind’s users.
You and This Naked Mind agree that either may bring claims against the other only on an individual basis and not as part of any purported class or representative action or proceeding unless both you and This Naked Mind agree otherwise. The arbitrator may not consolidate or join more than one person’s or party’s claims and may not preside over any form of a consolidated, representative or class proceeding. Also the arbitrator may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s claim(s). Any relief awarded cannot affect other This Naked Mind’s users.
20. REFUND POLICY
Unless otherwise specified in a separate agreement, refunds for purchases on the Services must be sent to hello@thisnakedmind.com within fourteen (14) calendar days of purchase. Programs that require monthly payments are nonrefundable, but This Naked Mind will cancel your account upon receiving a cancellation request emailed to hello@thisnakedmind.com. Once we terminate your account, you acknowledge and agree that we may permanently delete your account and all the data associated with it.
21. SEVERABILITY
This Agreement, together with the Privacy Policy and any other legal notices published by This Naked Mind on the Services, shall constitute the entire agreement between you and This Naked Mind concerning the Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and This Naked Mind’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. YOU AND THIS NAKED MIND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
22. MODIFICATIONS
You can review the most current version of the Terms of Service Agreement by visiting this page. The revised Terms of Service Agreement will become effective upon posting. If you access or use the Services after the effective date, that use will constitute your acceptance of any revised terms and conditions.
24. DONATIONS
This Naked Mind is a for-profit limited liability company. You agree if you choose to donate to This Naked Mind, your donation is not tax deductible. You also acknowledge that unless agreed upon by you and This Naked Mind in writing, This Naked Mind may use your donation for any purpose in its sole discretion. You agree that information about donors, donees, and donations is confidential.
25. CONTACT US
If you have questions or comments about this Agreement, or to report any violations or abuse of the Services, please contact us at: compliance@thisnakedmind.com.
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