TERMS OF SERVICE
Welcome to the Mystic Mondays, operated by Mystic Mondays, LLC, a Pennsylvnia Limited Liability Company (“Mystic Mondays”) and located at www.mysticmondays.com (“Site”) and its mobile application (“Application”). The following terms and conditions (“Terms”) govern your use of Mystic Mondays’ Site and Application, including your use during any beta testing of the Site or Application.
THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND A CLASS ACTION WAIVER CLAUSE. BY USING THE SITE AND APPLICATION, YOU ARE ACCEPTING THIS AGREEMENT AND, WHILE YOU MAY STILL PURSUE CLAIMS AGAINST MYSTIC MONDAYS, YOU ARE AGREEING THAT YOU MUST PURSUE YOUR CLAIMS IN A BINDING ARBITRATION PROCEEDING (AND NOT IN A COURT) AND ONLY ON AN INDIVIDUAL (AND NOT A CLASS ACTION) BASIS. PLEASE READ THESE TERMS CAREFULLY TO UNDERSTAND YOUR RIGHTS AND RESPONSIBILITIES.
By accessing, viewing, or using the content, material, or services available on or through this Site, you represent that you are at least 13 years of age (and, if under the applicable age of consent, that you have the permission of your guardian to access this Site and Application), that you have read and understand these Terms, and that you agree to them and intend to be legally bound by them. If you do not agree to these Terms, you are not granted permission to use this Site or Application and must exit immediately.
Informational Purposes Only. The Site, Application, and Site Materials (defined below) are for informational purposes only. Without limiting anything else in these Terms or otherwise, Mystic Mondays is not responsible for any errors or omissions in the Site, Application or Site Materials. The Site and Application are not intended to be a substitute for professional medical or other advice, and Mystic Mondays does not represent or warrant that the Site, Application, or Site Materials provides any such advice or assurances.
License. Subject to these Terms, Mystic Mondays hereby grants you a personal, limited, terminable, revocable, non-exclusive, nontransferable, nonsublicenseable license to access and use the Site and Application solely for use in accordance with these Terms. You shall be responsible, at your sole expense, for procuring, operating, and maintaining the computer system, mobile device, hardware, software, and other items necessary or appropriate to enable you to exercise your rights and licenses hereunder. Without limiting any other provisions of these Terms, all software and other materials, including the Site and Application, made available to you are the copyrighted work of Mystic Mondays or its licensors. Copying or distributing the Site or the Site Content (as defined below) is expressly prohibited.
Unauthorized Activities. You agree that you will not use the Site or Application for: (a) any illegal or unauthorized purposes that violate any local, national, or international laws (including but not limited to import, export, copyright, and trademark laws); (b) modifying, copying, distributing, displaying, performing, reproducing, publishing, licensing, creating derivative works from, transferring, selling any of the Site Materials, unless otherwise authorized by these Terms or in a separate written agreement with Mystic Mondays; (c) attempting to gain unauthorized access to Mystic Mondays’ computer systems or engaging in any activity that interferes with the performance of, or impairs the functionality of the Site or Application or any services provided through the Site or Application; (d) any resale or commercial use of the Site or Application; (e) any downloading or copying of the Site Materials for any reason, or any use of data mining, robots or similar data gathering and extraction tools; (f) using the Site or Application to access or collect any personally identifiable information, including any names, email addresses or other such information for any purpose, including, without limitation, commercial purposes; or (g) removing, circumventing, disabling, damaging or otherwise interfering in any way with any security-related features of the Site or Application aimed at preventing or restricting the unauthorized use of the Site or Application or any of the Site Materials. You may use the Site, Application, and the Site Materials only as consistent with these Terms. Any other use of the Site, Application, or Site Materials, including but not limited to the aforementioned unauthorized uses, without prior written permission of Mystic Mondays is strictly prohibited. You acknowledge and agree that the unauthorized use of the Site, Application, or the Site Materials could cause irreparable harm to Mystic Mondays and that, in the event of such unauthorized use, Mystic Mondays shall be entitled to an injunction in addition to any other remedies available at law or in equity.
Marketing. When opting in to use the mobile application or website, you will also receive marketing materials from Mystic Mondays, LLC. You have the option to unsubscribe at any time.
You are responsible for all charges incurred under your account, whether made by you or another person using your account. If for any reason we do not receive payment for a purchase, we may exercise our rights in law and equity, including (a) immediately suspending or terminating your account; (b) seeking collection of the outstanding amount owed; and/or (c) seeking legal action against you for the breach of these Terms. We may also charge you a late payment charge of one- and one-half percent per month. You are also responsible for paying any governmental taxes imposed in connection with use of the Site or Application or the purchase of any products or services made available through the Site or Application, including sales, use, and excise taxes (excluding only taxes on our net income). To the extent that we are obligated to collect such taxes, the applicable tax will be added to your billing account.
All purchases through the Site and Application are nonrefundable, regardless of use or lack of use by you. All refunds will be made in our sole discretion. Once a charge has been processed to your credit card or wireless account, you shall not request that your credit card or mobile carrier company reverse the charge or charge it back us. If you have a legitimate basis to request a credit for a charge previously processed against your credit card account, you may request a credit from us by written notice and resolve the issue directly with us. Any reversed charges that cause the credit card company to impose a charge back, refund, or credit cost against us shall be reimposed by us upon you. Such costs may exceed the cost of the reversed item or charge back by many times.
All prices displayed on the Site and Application are quoted in United States Dollars (USD). We may restrict delivery to addresses in certain jurisdictions. We will add shipping and handling fees and applicable sales/use tax in accordance with our then existing policies.
We reserve the right without prior notice to discontinue or change specifications and prices on products offered on the Site or Application without incurring any obligation to you. Products displayed on the Site or Application are available while supplies last. Descriptions of, or references to, products on the Site and Application do not imply endorsement of that product, or constitute a warranty, by Mystic Mondays.
We reserve the right to limit the order quantity on any item and to refuse service to any customer without prior notification. In the event that a product is listed at an incorrect price, we shall have the right to refuse or cancel orders placed for the product listed at the incorrect price, regardless of whether the order has been confirmed and your account charged. If your account has already been charged for the purchase and your order is canceled, we shall promptly issue a credit to your account in the amount of the incorrect price or provide you with a refund at your election.
We may limit or prohibit orders that, in our sole judgment, appear to be placed by resellers, distributors or any other unauthorized party. You are not permitted to resell any products or services purchased through the Site for commercial purposes.
Third-Party Payment Processor. Mystic Mondays uses a third party payment processor (iTunes and Google Pay) to process credit card transactions made through the Site and Application. If you purchase products from Mystic Mondays or make any payments via the Site or Application with your credit card, the credit card information that you submit to Mystic Mondays will be protected by encryption, such as with the Secure Socket Layer ("SSL") protocol. Encryption decreases the likelihood that your credit card information will be stolen or intercepted during transmission to Mystic Mondays. You are responsible for all charges incurred under your account, whether made by you or another person using your account.
Materials Submitted to the Site or Application. The Site or Application may allow you to contribute content, information, text, files, graphics, personal listings, messages, postings, and other materials and information for access, use, and commentary by other visitors to the Site or Application (“User Content”). Please be aware that whenever you post information to the Site or Application that information may be accessible for other users. You should therefore choose carefully the information you post and that you provide to other users. Upon your submission of User Content or other material or information to Mystic Mondays, you grant Mystic Mondays a worldwide, perpetual, non-terminable, irrevocable, transferable, license to access, use, distribute, perform, reproduce, display, modify, create derivative works based upon, and sublicense, and to permit others to access, use, distribute, perform, reproduce, display, modify and create derivative works based upon the User Content, all without any compensation to you whatsoever.
By posting User Content to the Site or Application or otherwise submitting User Content to us, you represent that you have the full legal right to provide the User Content and that use of the User Content by Mystic Mondays on the Site or Application, and all other persons and entities, will not: (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including as a result of your failure to obtain consent to post personally identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, regulation, or agreement; or (c) promote or provide instructional information about illegal activities, promote physical harm, or injury against any group or individual, or promote any act of cruelty to animals, including instructions on how to assemble bombs, grenades, and other weapons or how to use or obtain illegal drugs; (d) be defamatory, libelous or trade libelous, unlawfully threatening, or unlawfully harassing, or promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (e) impersonate any person or entity or falsely state or otherwise imply an affiliation with a person or entity, or include any falsified, composite, or otherwise non-authentic depictions of events, locations, landmarks, entities or persons; (f) contain or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (g) be obscene, child pornographic, or indecent; (h) violate any community or Internet standard; (i) constitute misappropriation of any trade secret or know-how; or (j) constitute disclosure of any confidential information owned by any third party.
You are solely responsible for the User Content that you post on the Site. User Content is not necessarily reviewed by Mystic Mondays prior to posting and does not necessarily reflect the opinions or policies of Mystic Mondays. Mystic Mondays makes no warranties, express or implied, as to User Content or the accuracy and reliability thereof or any material or information that you transmit to other users.
Mystic Mondays expressly reserves the right to remove any information or materials posted or transmitted for any reason or for no reason. Mystic Mondays will fully cooperate with any law enforcement authorities or court order requesting or directing Mystic Mondays to disclose the identity of anyone posting any such information or materials. We are not responsible for, and do not endorse or guarantee, the opinions, views, advice or recommendations posted or sent by users.
If you believe that any content or postings on the Site or Application violate your intellectual property or other rights, please follow our Complaint Procedure in Section 14 of these Terms.
Third-Party Websites and Content. The Site or Application may contain links to other websites for the convenience of users in locating and utilizing information or services that may be of interest. The Site or Application may also incorporate articles, features and services provided by third parties. Use of these third party sites, articles, features and services, the Site, Application, and the Site Materials, and any other material or content on and made available through the Site or Application is entirely at your own risk. Mystic Mondays does not recommend and expressly disclaims any responsibility for the content, the accuracy of the information, or quality of products or services provided by or advertised on third party websites or the transactions you conduct or enter into with third parties. Your use of any third party websites is at your own risk, and subject to the terms and conditions of such other websites. Mystic Mondays does not endorse any product, service, or treatment provided on a third party website or advertised or provided on the Site or Application.
Disclaimer. Without limiting anything else in these Terms or otherwise, Mystic Mondays is not responsible for any errors or omissions in the Site, Application, or Site Materials. Mystic Mondays and its affiliates are not responsible for and do not guarantee the accuracy or completeness of any Site Materials, articles, products, data, services, links, advertisements or other items contained within the Site or Application. Mystic Mondays reserves the right to immediately remove any Site Materials for any reason, or for no reason. Mystic Mondays cannot and does not review all communications, products, or services made available on or through the Site or Application, but, although not obligated to, may review, verify, make changes to or remove any Site Materials, the Site, Application, or the products or services made available in connection with the Site or Application, including information submitted in connection with the Site Materials or other features at any time, with or without notice in its sole discretion. You agree that you must evaluate and bear all risks associated with the use of Site Materials and that you may not rely on such Site Materials.
THE SITE, APPLICATION, THE SITE MATERIALS, SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE OR APPLICATION ARE MADE AVAILABLE “AS IS” AND “WITH ALL FAULTS.” USE OF THE SITE OR APPLICATION IS ENTIRELY AT YOUR OWN RISK. MYSTIC MONDAYS AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SITE, APPLICATION, THE SITE MATERIALS, SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE OR APPLICATION, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEMS INTEGRATION, NON-INTERFERENCE, QUALITY, TITLE, AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS AND EFFORT WITH REGARD TO ANY AND ALL OF THE SITE, APPLICATION, THE SITE MATERIALS, SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE OR APPLICATION, IS WITH YOU.
LIMITATION OF LIABILITY. MYSTIC MONDAYS AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING LOST REVENUES OR LOST PROFITS, WHICH MAY OR DOES RESULT FROM THE USE OF, ACCESS TO, OR INABILITY TO USE THE SITE, APPLICATION, THE SITE MATERIALS, SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE OR APPLICATION, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT YOU OR MYSTIC MONDAYS HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF MYSTIC MONDAYS AND ITS LICENSORS TO YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH, BASED UPON, OR ARISING FROM THE SITE, APPLICATION, THE SITE MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE OR APPLICATION, OR THE SERVICES, PRODUCTS, INFORMATION OR OTHER MATERIALS OFFERED IN CONNECTION THEREWITH EXCEED THE PRICE YOU PAID FOR THE PRODUCT OR SERVICE THAT IS THE SUBJECT OF THE CLAIM. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF MYSTIC MONDAYS AND ITS LICENSORS SHALL NOT EXCEED TEN DOLLARS ($10). If you are dissatisfied with the Site or Application or with any of these Terms, or feel Mystic Mondays has breached these Terms, your sole and exclusive remedy is to discontinue using the Site or Application.
Indemnification. You shall indemnify Mystic Mondays and its directors, officers, employees, agents, contractors, customers, clients and licensors (“Mystic Mondays Indemnitees”) against all claims, actions, suits, and other proceedings (“Claims”) arising out of or incurred in connection with the Site or Application and your use of the Site, Application, the Site Materials or any services, product or data obtained through the Site or Application, your fraud, violation of law, negligence, willful misconduct, or any other use of the Site, Application, the Site Materials, the services, products, information and other materials on, in and made available through the Site or Application, except to the extent attributable to Mystic Mondays, or any breach by you of these Terms and shall indemnify and hold Mystic Mondays Indemnitees harmless from and against all judgments, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and attorneys’ disbursements) arising out of or incurred in connection with such Claims. You may not settle any Claim without the prior written consent of Mystic Mondays. Mystic Mondays or its licensors may assume the defense of any Claim, at your sole cost and expense, and you shall cooperate in all reasonable respects in such defense. You shall have the right to employ separate counsel in any Claim and to participate in the defense thereof. If Mystic Mondays or its licensors do not notify you that it elects to undertake the defense thereof, you shall have the right to defend the Claim with counsel reasonably acceptable to Mystic Mondays, subject to the right of Mystic Mondays to assume, at their sole cost and expense, the defense of any Claim at any time prior to the settlement or final determination thereof.
Internet Security. Mystic Mondays uses reasonable efforts to ensure that the Site and Application are generally available. However, there will be occasions when access to the Site or Application will be interrupted or unavailable. Mystic Mondays will use reasonable efforts to minimize such disruption where it is within its reasonable control. You agree that Mystic Mondays shall not be liable to you for any modification, suspension or discontinuance of the Site or Application. You understand that the technical processing and transmission of any Site or Application content may be transferred unencrypted and involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Please be advised that Mystic Mondays does not guarantee that any information sent from our Site or Application will be secure during transmission, nor can Mystic Mondays guarantee the confidentiality of any communication or material transmitted to Mystic Mondays via the Site or Application or the Internet, including, for example, personal information such as your name or address.
Complaint Procedures. If you believe that any content or postings on this Site or Application violates your intellectual property or other rights, please notify Mystic Mondays by email at email@example.com with a comprehensive detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your email address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: “The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message.”
15.1 Any dispute arising out of these Terms shall be resolved exclusively through final and binding arbitration conducted by the American Arbitration Association (the “AAA”). Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual; and an arbitrator must also follow the terms of these Terms, as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability and the scope or enforceability of this agreement to arbitrate shall be for a court of competent jurisdiction to decide. Arbitration shall take place in Philadelphia, Pennsylvania unless We elect otherwise.
15.2 The arbitrator will decide the substance of all claims in accordance with the laws of the Commonwealth of Pennsylvania, without regard to any conflict-of-law rules or the United Nations Convention on Contracts for the International Sale of Goods. The arbitrator shall not be bound by rulings in prior arbitrations involving different Site users, but is bound by rulings in prior arbitrations involving the same Site user to the extent required by applicable law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Us should be submitted by mail to the AAA along with your demand for arbitration and We will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of accessing arbitration will be prohibitive as compared to the costs of accessing a court for purposes of pursuing litigation on an individual basis, we will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the costs of accessing arbitration from being prohibitive. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse us for all fees associated with the arbitration paid by us on your behalf that you otherwise would be obligated to pay under the AAA’s rules. If an arbitrator or court decides that any part of this agreement to arbitrate is invalid or unenforceable, the other parts of this agreement to arbitrate shall still apply.
15.3 You can choose to reject this agreement to arbitrate by mailing us a written opt-out notice (“Opt-Out Notice”). The Opt-Out Notice must be postmarked no later than thirty days after the date you accept these Terms for the first time. You must complete the Opt-Out Notice form by providing the information called for in the form, including your name, address (including street number and address, city, state, and zip code), phone number, and the email address used to log in to the Mystic Mondays account to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the agreement to arbitrate. If you opt out of the agreement to arbitrate, all other parts of these Terms will continue to apply. Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us
Changes to these Terms; Termination. Mystic Mondays reserves the right at any time to modify, alter or update these Terms. Your use of the Site or Application following any changes means that you agree to follow and be bound by the terms as changed. Any change to these Terms shall be effective as to any visitor who has visited the Site or Application before the change was made. It is the obligation of users visiting the Site or Application before the change to learn of changes to the Terms since their last visit. Mystic Mondays may suspend or terminate your account and/or your ability to use the Site, Application, or any services on the Site or Application, for failure to comply with these Terms, for providing Mystic Mondays with untrue or inaccurate information about yourself, for infringement upon Mystic Mondays proprietary rights, or for any other reason whatsoever or for no reason.
Governing Law and Jurisdiction. These Terms represent the entire agreement between you and Mystic Mondays with respect to the subject matter hereof, and supersede any and all prior and contemporaneous written and oral representations, understandings, and agreements, express and implied, and will be governed by and construed in accordance with the laws of the Pennsylvania, without reference to its conflict of law rules. You hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in Philadephia, Pennsylvania, and you hereby irrevocably waive the right to trial by jury and any jurisdictional and venue defenses otherwise available.
Miscellaneous. The Site and Application are controlled and operated from within the United States. Without limiting anything else, Mystic Mondays makes no representation that the Site, Application, Site Materials, services, products, information or other materials available on, in, or through the Site or Application is appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Site or Application from other locations do so on their own volition and are fully responsible for compliance with applicable laws. The waiver or failure of Mystic Mondays to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms. Headings used in these Terms are for reference only and shall not affect the interpretation of these Terms. No person or entity not party to this agreement will be deemed to be a third party beneficiary of these Terms or any provision hereof. When used herein, the words “includes” and “including” and their syntactical variations shall be deemed followed by the words “without limitation.”
Dated: February 28, 2020
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