menu

Terms of Services

HEALTHY MIND MAP TERMS OF SERVICE

These Terms of Service (these “Terms”) govern your access and use of (a) the Healthy Mind Map mobile software application (the “Application”), (b) any Content (defined below) viewable or otherwise accessible through the Application and (c) any Tools (defined below) or other services made available or otherwise accessible through the Application, as well as any updates, upgrades or improvements to, or derivative works of, any of the foregoing ((a), (b) and (c) constitute, individually and collectively, the “Services”).  Unless otherwise defined below, capitalized terms used in these Terms are defined in Section 31 below.

UNLESS PROHIBITED BY APPLICABLE LAW, YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED IN SECTION 27(b) BELOW TO RESOLVE ANY DISPUTES RELATING TO OR ARISING FROM THESE TERMS OR YOUR ACCESS OR USE OF THE APPLICATION.

  1. These Terms are a binding and enforceable contract by and between our Company (as used herein, the terms our “Company,” “we,” “us” or “our” refer to Healthy Mind Map, LLC, a Utah limited liability company), and the individual end user (“You”) who accepts these Terms or otherwise accesses or uses the Services.  PLEASE READ THESE TERMS CAREFULLY.  BY INDICATING YOUR ACCEPTANCE, OR BY ACCESSING OR USING THE SERVICES IN ANY MANNER, YOU IRREVOCABLY AND UNCONDITIONALLY ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.  IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ACCESS OR USE THE SERVICES.
  2. To access and use the Application, You must download the Application to your mobile device and create an Account (defined below).  In the “Sign Up” section of the Application, You create an Account by entering your valid email address, identifying information (username and password), contact information, professional licensure information (if applicable), Beneficiary (defined below) information (if establishing a paid Subscription (defined below)), Payment Method (if applicable), etc. and “acceptance” of these Terms (all of the foregoing and the relationship created thereby are referred to as your “Account”).  You are responsible for all activities on the Services associated with your Account.  You represent that any information you provide in connection with your Account (e.g., billing information when you pay for a Subscription) will be accurate, and that you will keep it updated for so long as you have an Account.
  3. When your Account is created, and until your Account is terminated or disabled, we grant You a personal, non-exclusive, revocable, non-sublicensable, and non-transferable license to download and install the Application in object code format on one or more mobile devices for your personal use, but in all cases subject to the terms, conditions and limitations set forth in these Terms.  The license includes the right to (i) access, use, and make a reasonable number of copies of any published descriptions of the functionality, technical requirements, or use of the Services (collectively, “Documentation”), and (ii) use any Updates made available to all users of the Services at no additional cost when each Update is made generally available.  Updates may be installed automatically or require installation or approval by You. Failure to install an Update may result in the Services not functioning correctly.
  4. Notwithstanding anything to contrary in these Terms, You may not access or use the Services if You have not attained — and You represent and warrant that you have attained — the age of thirteen (13) years or older.
  5. If You have not attained the age of eighteen (18) years, You represent that You have your parent or guardian’s permission to use the Service.  Please have them read these Terms with You.  If You are a parent or legal guardian of a user under the age of 18, by allowing your child to use the Services, you are subject to the terms of these Terms and responsible for your child’s activity in accessing or using the Services.
  6. The Services are intended for your personal use, subject to the terms and conditions set forth herein.
  7. The Services revolve around, and are intended to nurture and support, the mental or emotional condition of a designated individual (“Beneficiary”) under a paid Subscription.  A paid Subscription covers Beneficiary, as well as Supporters (defined below) and Providers (defined below) in his or her Network (defined below).
    1. The following proprietary components of the Services (“Tools”) require a paid Subscription (defined below) and may be accessed and/or used only by the class of users indicated:
  Users
Application Content related to certain mental health conditions, such as anxiety, depression, panic or social anxiety, and Application Content related to nurturing and supporting mental or emotional conditions (we reserve the right to make, from time to time, a limited amount of Application Content and/or tools available without a paid Subscription). Beneficiary
Mental health assessment and tracking tools (“Assessment Tools”), including (a) questionnaires or graphical user interfaces that screen for or track indicative factors related to anxiety, depression, panic, social anxiety or other mental health conditions; (b) questionnaires or graphical user interfaces that seek to identify and track symptom and outcome measures to monitor progress and changes in symptom severity, (c) biometric and mobile device usage information and data and/or (d) mental health activities or tasks for coping with anxiety, depression, panic, social anxiety or other mental health conditions. Summarized, aggregated or longitudinal analysis or charting of data or information compiled or derived from Beneficiary’s use of Assessment Tools (“Assessment Data”). Beneficiary
Designation of individuals (such as friends and family members) who (i) are involved with Beneficiary’s mental or emotional condition, (ii) establish their own individual Account and (iii) are invited by Beneficiary under the applicable Subscription (each a “Supporter” in Beneficiary’s “Network”). Sharing of Assessment Data regarding Beneficiary with one (1) or more Supporters in his or her Network (but only if, as and when designated by Beneficiary). Beneficiary
Designation of individuals who (i) provide health care, mental health or psychotherapy services for Beneficiary, (ii) are licensed under applicable state law to do so within the scope of practice defined in their respective licensing act, (iii) establish their own individual Account, and (iv) are invited by Beneficiary under the applicable Subscription (each a “Provider” in Beneficiary’s “Network”). Sharing of Assessment Data regarding Beneficiary with one (1) or more Providers in his or her Network accordance with, and subject to, Section 7(b)(ii) below (but only if, as and when designated by Beneficiary). Beneficiary
Communications or sharing of Protected Health Information regarding diagnosis or treatment of Beneficiary between or among Providers in accordance with, and subject to, Section 7(b)(ii) below (but only if, as and when designated by Beneficiary). Providers
  • Notwithstanding anything to the contrary in these Terms:
    • Until such time as a Beneficiary invites You (as a Supporter or Provider), You will have access only to limited Application Content (general information that we make available) and You will not have access to any other Application Content, Assessment Tools or Assessment Data under the paid Subscription applicable to such Beneficiary.
    • Once Beneficiary uses Tools to invite You to his or her Network (as a Supporter or Provider), You will be in his or her Network and have the right to access and review Assessment Data, but only if, as and when designated by Beneficiary from time to time.  For convenience, we refer to Beneficiary and each Supporter or Provider in his or her Network under a paid Subscription as “Network Members.”
  • A paid access plan or subscription (“Subscription”) can be obtained by Beneficiary or by a Supporter in his or her Network,as permitted in the “Sign Up” or “Settings” section of the Application.  Paid access or subscription levels, features, available subscription periods, and periodic charges or fees (including taxes or assessments thereon, “Subscription Fees”) are available for review in the “Sign Up” or “Settings” section of the Application.  The individual holder of the Account under which the paid Subscription is acquired (“Subscriber”) is solely responsible for payment of applicable Subscription Fees and has the sole right to terminate, extend or modify the Subscription.
  • During each Subscription Period, the designated Beneficiary and Supporters and Providers in his or her Network may access and use the Services (but only specific Tools, as described above) under the Subscription, free of charge (other than the Subscription Fee paid by Subscriber) under the paid Subscription applicable to such Beneficiary.
  • Unless there is a Timely Cancellation (defined below), Subscription Fees are immediately due and payable by Subscriber (a) with respect to the first Subscription Period following Account Activation, immediately following expiration of the Evaluation Period and (b) with respect to any other Subscription Period (e.g., a renewal or extended Subscription Period), on the first (1st) day thereof.  Subscription Fees are not charged until the Evaluation Period has expired.  All Subscription Fees are fully-earned and non-refundable upon receipt by our Company.  In addition to Subscription Fees, Subscriber shall pay any and all sales, use, business, occupation, value-added, excise or similar taxes arising from or related to the Services or the Subscription, including taxes based upon the amount of Subscription Fees, but excluding taxes based upon our net income.  All payments shall be made in U.S. dollars and shall not be subject to set-off for any claims against our Company.
  • The Subscription may be cancelled by Subscriber at any time.  To cancel, Subscriber should go to the “Settings” section of the Application and follow the instructions for cancellation.  If Subscriber completes such cancellation procedure prior to the expiration of, as applicable, the Evaluation Period or the then-current Subscription Period (a “Timely Cancellation”), the Subscription will be cancelled and the Subscription will not be renewed. 
    • If there is a Timely Cancellation during the Evaluation Period, no Subscription Fees or other charges will be due or payable to us (or, if Subscription Fees have been paid, we will refund to Subscriber, within ten (10) Business Days, the amount of Subscription Fees that we have received), the Subscription will automatically terminate and Beneficiary, as well as Supporters and Providers in his or her Network, will no longer have any access to or use of the Services under the Subscription.
    • Conversely, if there is a Timely Cancellation during the Subscription Period (but after the Evaluation Period), Beneficiary, as well as Supporters and Providers in his or her Network, will continue to have access to and use of the Services under the Subscription through the end of the then-current Subscription Period, but the Subscription will not be automatically renewed following expiration of the then-current Subscription Period.  However, any Subscription Fees attributable to the then-current Subscription Period are earned in full and non-refundable (there will not be any prorated refund).
  • If there is no Timely Cancellation, the Subscription shall automatically renew.  The Subscription will be renewed for an additional Subscription Period having the same duration as the expired Subscription (e.g., an annual subscription will renew for an additional one (1) year period) and the Subscription Fee will be adjusted to our then-current fees and charges (which will be available for review in the “Sign Up” or “Settings” section of the Application) and immediately due and payable by Subscriber in accordance with Section 10 above.
  • We may change, modify or discontinue the Services and/or any Tools (in whole or in part) at any time.  We reserve the right at any time and from time to time (i) to modify or discontinue, temporarily or permanently, the Services and/or any Tools (in whole or in part) or (ii) to limit, suspend or terminate any current or future feature, functionality or use of the Services and/or any Tools.  If we terminate or discontinue the Services and/or any Tools, or modify the Services and/or any Tools in a way which materially reduces the functionality or performance of the Services (from the perspective of a typical consumer), as determined in our sole discretion, we will refund to Subscriber that fraction of the Subscription Fees paid for the then-current Subscription Period, but only as to the period of time after the later of (i) the date of the modifications which materially reduced the functionality or performance of the Services and (ii) the date Beneficiary materially reduced his or her use of the Services (as compared to historical usage).
  • The Services may be used solely for Permitted Uses.  In addition to that limitation, You shall not:
    • use the Services for any emergency (medical, mental health or otherwise), suicide prevention or life safety purpose — instead, You should call 911 (emergency services dispatch) or 988 (suicide and crisis lifeline);
    • market, distribute, sell, rent, license, sublicense or resell the Services, or rights to access or use the Services, or any part thereof, whether as a distributor, reseller or otherwise;
    • attempt, or knowingly permit or encourage others to attempt, to decompile, decipher, disassemble, reverse engineer (unless expressly permitted by applicable law) or otherwise decrypt or discover the source code of all or any portion of the Application;
    • use the Services to provide services to third parties, to provide commercial timesharing, rental or sharing arrangements to third parties, on a “service bureau” basis, or to otherwise allow any third party to directly or indirectly use the Services for itself or for the benefit of any other party;
    • take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management or forward-lock functionality) in the Services;
    • utilize framing or similar techniques to present or display the Services on any website;
    • distribute, publish, facilitate, enable, or allow access to the Services to any other person;
    • export, ship, transmit or re-export any part of the Services in violation of any applicable law or regulation including, without limitation, the Export Administration Act of 1979 or the Export Administration Regulations issued by the United States Department of Commerce.
  • We own all right, title and interests in and to the Services, including the Application, Application Content and Tools.  Notwithstanding anything to the contrary in these Terms, as between You and our Company, (a) all title to, ownership of and all Intellectual Property Rights in and to Services, including the Application, Application Content and Tools, other than the limited rights of access and use granted to You under these Terms, shall remain vested solely and exclusively in our Company; and (b) all appropriate copyright and other proprietary notices and legends shall be retained on the Services, including the Application, Application Content and Tools and any printable or viewable reports generated by the use of the Services.  Except for the limited rights of access and use of the Services under the applicable Subscription, You shall have no further rights, titles or interests in or to the Services (or any items or services or software we use to host, maintain and/or operate the Application).
  • Some aspects of the Services, or segregable or discrete components of the Services (e.g., Tools), may be accessible or available only to Beneficiary or certain Supporters and/or Providers within Beneficiary’s Network.  For instance, certain Tools may be accessed and used only by Beneficiary and Assessment Data will be available, in the sole discretion of Beneficiary, only to one (1) or more Supporters or Providers in his or her Network (but only if, as and when designated by Beneficiary).  We reserve the right to limit the ability of certain users (or classes of users) under a Subscription to access or use segregable or discrete components of the Services or Tools.
  • We will implement technical security measures to preserve the confidential nature of any Assessment Data only to Network Members (but only those Network Members designated by Beneficiary from time to time) under the applicable Subscription.  Except as otherwise provided in the immediately preceding subsection, Providers may communicate using the Services only with other Providers in Beneficiary’s Network and those communications will not be available, disclosed or divulged to other Network Members (including Beneficiary).
  1. If You are a Provider, and You access or use the Services to (a) view Beneficiary’s Assessment Data (but only if, as and when designated by Beneficiary) or (b) communicate with other Providers in Beneficiary’s Network regarding Beneficiary under the Subscription, we are your business associate for HIPAA compliance purposes and other applicable laws regarding privacy of patient records.  In that capacity, with respect to any Protected Health Information that we create, receive, maintain or transmit by and through the Services, we covenant and agree to comply with the requirements of HIPAA as set forth for us in the Business Associate Addendum attached as Exhibit A (which shall be, and hereby is, incorporated by reference as if set forth verbatim herein).
  2. We make no representations or warranties to You.  YOURUSE OF THE SERVICES IS AT YOUR SOLE RISK.  THE SERVICES, AND/OR ANY ITEMS OR CONTENT TRANSMITTED OR OTHERWISE MADE AVAILABLE BY OR THROUGH THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEROPERABILITY AND NON-INFRINGEMENT. 
  3. Our liability, if any, to You is limited.  WE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM YOUR USE OR INABILITY TO USE THE SERVICES, OR ANY ITEMS OR CONTENT TRANSMITTED OR OTHERWISE MADE AVAILABLE BY OR THROUGH THE SERVICES.  IN NO EVENT SHALL OUR LIABILITY TO YOU AND OTHER MEMBERS UNDER THE SUBSCRIPTION, IF ANY, UNDER THESE TERMS EXCEED $100.00 IN THE AGGREGATE (LIABILITY, IF ANY, TO ALL MEMBERS UNDER THE SUBSCRIPTION AGGREGATED).  YOU COVENANT AND AGREE THAT WE SHALL NOT HAVE ANY DUTIES, LIABILITIES OR OBLIGATIONS TO YOU.
  4. To the extent permitted by applicable law, You irrevocably waive, release and discharge any claims, demands or causes of action against us.  In addition,You will indemnify, defend, and hold our Company harmless from any claim, action, suit, or proceeding made or brought against us arising out of or related to your breach of any provision of these Terms or use of the Services in violation of applicable law.
    1. We shall not be responsible or liable, directly or indirectly, for any personal injury, damage or loss incurred or suffered by You (or any other Network Member under the applicable Subscription) in connection with the access or use of the Services.  You expressly acknowledge and agree, and You hereby irrevocably and unconditionally waive and relinquish any claims or demands against us to the contrary (and agree to indemnify us against same), that we shall not be liable to You, any other Network Member under the applicable Subscription or any third party for any claims, demands, damages or causes of action of any kind or nature related to or arising from (a) any modification, suspension or discontinuance of the Services or any items, Content or services offered by or through the Services or (b) for any personal injury, damage or loss arising from or related to your access to or use of the Services.  Further, and notwithstanding anything to the contrary in these Terms, we shall not have any duty or obligation to: (c) provide medical or healthcare services of any kind or nature; (d) develop, create, modify or improve any computer software, whether software applications, application programming interfaces for the exchange of data or otherwise; or (e) save, maintain, store or otherwise manage any data or databases, including any of your Content. 
    1. If You are a California resident, You acknowledge that You have read and understand California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his favor at the time of executing the release, which, if known by him would have materially affected his settlement with the debtor.”  You acknowledge and agree that this Section 21(b) includes a release of claims which are not known or suspected to exist at the present time, and that You irrevocably and unconditionally waive, release and relinquish all rights and benefits under the above quoted Section 1542 and under the laws of any and all other states and jurisdictions with similar provisions or with laws resulting in similar effects.
    1. The provisions of this Section will not apply if, but only to the extent, prohibited under applicable law.
  5. We are not a health care provider and the Services may not be used, directly or indirectly, to diagnose, treat or correct for any human disease, ailment, injury, mental health condition, infirmity, deformity, pain or other condition, physical or mental, real or imaginary.  Our Services — and in particular any Application Content or any Assessment Data — are intended solely for informational purposes only and do not constitute medical or professional advice of any kind or nature.  With respect to Application Content and Assessment Data, we compile information from sources, including governmental agencies, private parties and other persons, generally believed to be reliable.  Notwithstanding anything to the contrary in these Terms, we shall not be liable under any circumstance, and bear no responsibility, for any personal injury, loss or damage arising from or related to any Application Content or Assessment Data.  You should consult a licensed and qualified healthcare professional for medical or mental health concerns, including for treatment or prevention of mental illness.  Our Services — and in particular any Application Content or any Assessment Data — are not a substitute for professional medical or other healthcare provider judgment, diagnosis, or treatment.  You should always seek the advice of your healthcare providers for any questions regarding any medical or mental health condition and You shall not use our Services to make medical decisions or delay or disregard professional medical or other healthcare provider advice based upon information provided by or through our Services.
  6. You are solely responsible for any and all of your Content. 
    1. You represent, warrant and covenant that, with respect to any and all of our Network Communications, You have (or will have) all rights necessary to Transmit such Network Communications and permit the Service to (and we are hereby authorized to) use, copy, display, reproduce, distribute and create derivative works of your Content in connection with the Services provided under the Subscription. 
    1. As between You and our Company, You shall have sole and exclusive ownership of all of your Content, including all IP Rights therein. 
    1. You shall not: (i) use the Service to upload, transmit or otherwise distribute any Content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene or contains viruses; (ii) upload, transmit or otherwise distribute Content that You know, or reasonably should know, (A) infringes upon another party’s intellectual property rights or (B) violates any contractual or fiduciary duties or obligations owed by You (or an person owned or controlled by You) to any third party; (iii) use the Services for any fraudulent purpose; or (iv) act in any way that violates these Terms.  We reserve the right, but shall not be obligated, to investigate use of the Services by You or any other Network Member under the applicable Subscription in order to determine whether a violation of these Terms has occurred or to comply with any applicable law, regulation, legal process or governmental request, provided that any such investigation shall be limited to examination or extraction of data within its possession and control and, if necessary, reasonable requests for information from Network Member.
    1. We reserve the right at all times to remove or refuse to accept any Content Transmitted using the Services.  We also reserve the right (but have no obligation) to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request (provided that we shall notify You prior to such disclosure of your Content, unless prohibited by applicable law, and cooperate and assist such You, at your cost and expense (paid in full in advance in an amount satisfactory to us), if and to the extent that You seek a protective order as to such disclosure), (ii) enforce these Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam), (iv) respond to your customer support requests, or (v) protect the rights, property or safety of Network Members and other users of the Services.
  7. We are not responsible for any Content, or other items or services, which may be published, displayed, distributed, offered, sold or otherwise made available by or through Third Party Services (defined below).  The Services (including any software, data, Content or copyrightable subject matter found or accessible by or through the Services) may contain links to internet websites or other electronic resources or services owned, controlled or operated by third parties (“Third Party Services”).  We exercise no control whatsoever over such other Third Party Services or the software, data, information, Content or other materials found on such Third Party Services.  You expressly acknowledge and agree that we shall not be liable under any circumstance, and bear no responsibility, for any claims, demands, damages or causes of action of any kind or nature related to or arising from your access or use of any Third Party Website or the information, materials or other Content displayed on or accessible through such Third Party Website.
  8. We may modify or supplement these Terms at any time by written notice to You.  We reserve the right, in our sole discretion, to update, amend, revise or replace these Terms any time during the Subscription Period.  To update, amend, modify or supplement these Terms, we will provide electronic notice to You.  Any changes or additions to these Terms shall be effective ten (10) days after we provide written notice thereof, unless we expressly designate a later effective date or a delayed effective date is required by law or any judicial or governmental body of competent jurisdiction.
  9. This Agreement will be governed and construed under the laws of the State of Utah without regard to its conflict of laws principles.  Except as otherwise provided in the immediately succeeding subsection (regarding arbitration), the exclusive venue for disputes arising out of or relating to these Terms shall be in the state or federal courts located in Salt Lake County, Utah.  Each party hereby irrevocably and unconditionally submits to the personal jurisdiction of such courts, waives any claim or objection, whether procedural or substantive, based upon lack of personal jurisdiction, inconvenient forum or the like, and further waives any right to trial by jury with respect to any such dispute. 
  10. Any dispute arising from or related to these Terms, or its performance or breach, shall be resolved by binding arbitration, provided that a party may seek injunctive relief as contemplated in subsection (c) below in the exclusive venue set forth in Section 26 above.
    1. This arbitration provision is expressly made pursuant to and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-14.  The parties agree that pursuant to Section 9 of the Federal Arbitration Act, a judgment of a United States District Court of competent jurisdiction shall be entered upon the award made pursuant to the arbitration.  A single arbitrator, who shall have the authority to allocate the costs of any arbitration initiated under this Section, shall be selected by mutual written agreement of the parties or, if the parties are unable to agree within ten (10) days after a party’s written demand for arbitration, any party may petition a court of competent jurisdiction for appointment of the arbitrator as contemplated by the Federal Arbitration Act.  The arbitrator shall be required to furnish to the parties to the arbitration a preliminary statement of the arbitrator’s decision that includes the legal rationale for the arbitrator’s conclusion and the calculations pertinent to any damage award being made by the arbitrator.  The arbitrator shall then furnish each of the parties to the arbitration the opportunity to comment upon and/or contest the arbitrator’s preliminary statement of decision either, in the discretion of the arbitrator, through briefs or at a hearing.  The arbitrator shall render a final decision following any such briefing or hearing.  The arbitrator shall conduct the arbitration in accordance with the Federal Rules of Evidence.  The arbitrator shall decide the amount and extent of pre-hearing discovery which is appropriate.  The arbitrator shall have the power to enter any award of monetary and/or injunctive relief (including the power to issue permanent injunctive relief and also the power to reconsider any prior request for immediate injunctive relief by any party and any order as to immediate injunctive relief previously granted or denied by a court in response to a request therefor by any party); provided, however THAT THE ARBITRATOR SHALL NOT HAVE THE POWER TO AWARD CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES UNDER ANY CIRCUMSTANCES REGARDLESS OF WHETHER SUCH DAMAGES MAY BE AVAILABLE UNDER APPLICABLE LAW, AND THE PARTIES HEREBY WAIVE THEIR RIGHTS, IF ANY, TO RECOVER ANY SUCH DAMAGES.  The arbitrator shall award the prevailing party its costs and reasonable attorney’s fees; provided, however, that the arbitrator shall not award attorneys’ fees to a prevailing party if the prevailing party received a settlement offer unless the arbitrator’s award to the prevailing party is greater than such settlement offer without taking into account attorneys’ fees in the case of the settlement offer or the arbitrator’s award.  The parties irrevocably and unconditionally stipulate and agree that the exclusive venue for arbitration under these Terms shall be in Salt Lake County, Utah.  The arbitration award may be enforced in any court having jurisdiction over the Parties and the subject matter of the arbitration.  NOTWITSTANDING ANYTHING TO THE CONTRARY HEREIN, THIS ARBITRATION AGREEMENT DOES NOT APPLY TO INDIVIDUALS WHO ARE SUBJECT TO THE LAWS OF JURISDICTIONS WHERE SUCH AGREEMENTS ARE PROHIBITED BY LAW.
    1. ANY CLAIMS WITHIN THE SCOPE OF THE FOREGOING ARBITRATION PROVISION MUST BE BROUGHT IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND THE ARBITRATOR MAY NOT (i) CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, (ii) OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, OR (iii) AWARD CLASS-WIDE RELIEF.  If a court determines that applicable law precludes enforcement of any of the limitations in this subsection as to a given claim for relief, then the applicable claim, and only that claim, must be severed from the arbitration and brought into the state or federal courts located in Salt Lake County, Utah in accordance with Section 26.  All other claims will be arbitrated.
    1. Notwithstanding the foregoing, either party shall be permitted to seek a preliminary injunction or other equitable remedy in the courts to preserve rights which may otherwise be lost or encumbered in the absence of injunctive relief, or to preserve the status quo, including but not limited to preserving confidentiality of confidential information or Protected Health Information or protecting IP Rights.
  11. The Services, including Application Content, have been developed entirely with private funds.  The Services, including Application Content and Tools, are “commercial items” (as defined in FAR 2.101).  You acknowledge that (i) the Application (and its instructions and help functions) and Tools constitutes “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 and (ii) any related data, technical data and documentation are commercial items for purposes of 48 C.F.R. 12.211 and 48 C.F.R. 227.7102, as applicable.  If You are an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, including Application Content, is restricted by the terms, conditions and covenants contained in these Terms.
  12. Any notices to us must be delivered in writing by electronic mail.  All notices, requests or other communications required or permitted under these Terms shall be in writing and shall be delivered via internet electronic mail as follows: (a) if to You, addressed to the electronic mail address on file under your Account, and (b) if to our Company, addressed to the following electronic mail address: legal@healthymindmap.com.  All notices, except notices of change of address, shall be deemed given when electronically mailed and notices of change of address shall be deemed given when received.  By accessing or using the Application in any manner, Network Member irrevocably and unconditionally consents to receiving electronic communications and notices from us, including service of process, and agrees that any such communication will satisfy any legal communication requirements, including that such communications be in writing.
  13. The following additional important terms and conditions apply.
    1. You shall not sell, assign, sublicense or otherwise transfer, in whole or in part, directly or indirectly, by operation of law (including by reason of death, disability or any receivership or conservatorship), any of his or her rights or obligations under these Terms without our prior written consent, which consent may be withheld, delayed or conditioned in our sole discretion for any reason or for no reason.
    1. If any of the provisions of these Terms shall be found to contravene any binding law or governmental regulation, it is agreed that the invalidity, unenforceability or illegality of such provision should not invalidate the whole of these Terms, but these Terms shall be construed as if it did not contain the provision or provisions found to be invalid in the particular jurisdiction(s) concerned, and the rights and obligations of the parties hereto shall be construed and enforced accordingly.
    1. The failure of our Company to take any action under these Terms, or the waiver of a breach of these Terms, shall not affect our rights to require performance hereunder or constitute a waiver of any subsequent breach.  A waiver to be valid shall be in writing, but need not be supported by consideration.
    1. Should we incur attorneys’ fees or costs in order to enforce these Terms, whether or not a legal action is instituted, we shall be entitled to recover reasonable attorneys’ fees and costs, in addition to all other rights and remedies we may have at law or in equity.
    1. These Terms shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party, and ambiguities shall not be interpreted against the drafting party.  Whenever the singular number is used in these Terms and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders, and vice versa.  Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.  The word “including” shall mean including without limitation.  Notwithstanding anything to the contrary in these Terms, any grant of “discretion” to us or our Company is authorization to act in our sole and absolute discretion to the greatest extent permitted by law and we will be entitled to consider only such interests and factors as we desire.
    1. Time is of the essence in the performance of these Terms.  The parties agree and acknowledge that all time periods stated herein are reasonable with respect to any actions which must be performed or events which must or may occur, and each party waives any claim that the time periods specified herein are unreasonable or invalid in any respect.  In computing any time period prescribed or allowed by these Terms, the day of the act, event or default from which the designated period of time begins shall not be counted, but the last day of the period so computed shall be counted, unless it is a Saturday, Sunday or legal holiday in the jurisdiction in which the recipient maintains its principal place of business, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday in the jurisdiction in which the recipient maintains it is principal place of business.
    1. You and our Company, and relative to each other Network Member under the applicable Subscription, expressly do not intend hereby to form a general partnership or joint venture of any kind or nature.  These Terms for the sole and exclusive benefit of You and our Company and no third party shall have any rights under these Terms.
    1. These Terms and any claims arising out of these Terms shall be governed by and construed in accordance with the substantive laws of the State of Utah, without regard to conflicts of law principles.  Except as otherwise provided in Section 27 above, the parties irrevocably and unconditionally consent to the exclusive jurisdiction of the state and federal courts located in Salt Lake County, Utah.  By accepting these Terms, You consent to and submit to the jurisdiction of the state and federal courts located in Salt Lake County, Utah, and hereby irrevocably and unconditionally waive any defense or objection, whether procedural or otherwise, based upon lack of personal jurisdiction, inconvenient forum or the like.  EACH PARTY IRREVOCABLY AND UNCONDTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY.
  14. The following definitions apply:
    1. “Account Activation” means the completion of all of our requirements for establishing an online account and, if applicable, a Subscription permitting access and use of the Application, as described in Section 2 hereof.
    1. “Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in Salt Lake City, Utah are authorized or required by applicable law to close.
    1. “Content” means any and all articles, columns, manuscripts, educational materials, commentary, notes, opinions, impressions, expressions, literary works, memoranda, works of authorship or other copyrightable subject matter, as well as sound recordings, video recordings or audio-visual works, in any form, format or medium (including tangible, printed, magnetic, electronic or digital format), whether now existing or later developed and regardless of whether registerable or protectable under applicable copyright laws.  Content may be classified as either:
      1. “Application Content” means any and all Content that may be accessed, viewed, downloaded, copied or reproduced by and through the Services, but expressly excluding all Network Communications; or
      1. “Network Communications” means (A) generally, all Content originally created, developed, reduced to writing or otherwise fixed in any tangible medium of expression by any Beneficiary, Supporter or Provider in Beneficiary’s Network and (B) specifically with respect to any Content that You originally create, develop, reduce to writing or otherwise fix in any tangible medium of expression (“your Content”), in either case only if and to the extent Transmitted by or through use of the Services under the Subscription.
    1. “Evaluation Period” means the period commencing on the date and time of Account Activation and ending at 11:59 p.m. (Salt Lake City time) on the seventh (7th) calendar day thereafter, provided that we reserve the right and option, in our sole discretion, to extend the Evaluation Period from time to time.

This is a complete expression of the entire agreement between our Company and You.  These Terms contain the entire agreement of the parties with respect to the subject matter of these Terms and supersedes all previous or contemporaneous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.

“HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996, and any amendments thereto.

  • “IP Rights” means (i) rights in patents, patent applications and patentable subject matter, whether or not the subject of an application, (ii) rights in trademarks, service marks, tradenames, trade dress and other designators of origin, registered or unregistered, (iii) rights in copyrightable subject matter or protectable designs, registered or unregistered, (iv) rights in computer software, databases and documentation, (v) trade secrets, (vi) rights in internet domain names, uniform resource locators and e-mail addresses, (vii) rights in semiconductor topographies (mask works), registered or unregistered, (viii) know-how and (ix) all other intellectual and industrial property rights of every kind and nature and however designated, whether arising by operation of law, contract, license or otherwise.
  • “Payment Method” means either (i) valid credit card information (including account number, name on card, expiration date and security or CCV code) or (ii) valid savings or checking account information, together with written authorization to charge such credit card or effect ACH debit transactions directly against such bank account in accordance with these Terms.
  • “Permitted Uses” means personal, family or household purposes, but expressly excluding the provision of health care, mental health or psychotherapy services; provided, however, that Providers may use the Services to communicate with (i) one (1) or more Beneficiaries for whom they provide health care, mental health or psychotherapy services for Beneficiary within the scope of practice defined in their respective professional licensing act or (ii) other Providers regarding the health care or mental health of such a Beneficiary, but only if, as and to the extent permitted under applicable laws.
  • “Protected Health Information” shall mean individually identifiable health information (as defined in 45 C.F.R. 160) that is (i) transmitted by electronic media; (ii) maintained in any medium constituting electronic media; or (iii) transmitted or maintained in any other form or medium; provided, however, that, for purposes of these Terms and use of the Services, all references to Protected Health Information shall mean, and be limited to, Protected Health Information Transmitted between (to or from) Providers who access and use the Services under the applicable Subscription.
  • “Subscription Period” means the period commencing on the date of Account Activation (or any renewal date) and continuing for the period or duration (e.g., monthly, quarterly or annually) selected (and paid for) by Subscriber.

“Transmit” (and variants thereof) means, as applicable in context, to enter, input, dictate, post, send, upload, deliver or otherwise transmit or communicate by and through the functional capabilities of the Application.