ThetaCalm Neuro, Inc. (“ThetaCalm”) has developed a proprietary system which uses light electric stimulation to induce a state of hyperplasticity in the brain (the “ThetaCalm System”) utilizing a specially designed device (the “ThetaCalm Device”).
1. Requirements to Use the Service
The Service is offered and available to users who are 18 years of age or older and reside in the United States or any of its territories and possessions. Furthermore, the Service is only offered to users who (i) are not incapable of giving consent, (ii) are not pregnant or possibly pregnant, (iii) are not utilizing an active implanted medical device, (iv) do not have a skull defect or any implant in his/her skull, and (v) do not have a history of seizures. By using the Service, you represent and warrant that you are of legal age to form a binding contract with ThetaCalm and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Service.
The Service may only be used with a ThetaCalm Device manufactured, distributed, or sold by or on behalf of ThetaCalm. You may not connect to the Service with any device that is not manufactured, distributed, or sold by or on behalf of ThetaCalm (such as a knock off or counterfeit version of a ThetaCalm Device); otherwise intends to resemble or purports to be a ThetaCalm Device; or any unauthorized application or-third party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the Service.
2. Account; Account Security
To use the Service, you must create an account by providing us with a valid email address. You can access your account information at any time through the Service. You agree that you will supply truthful, accurate and complete information to ThetaCalm, and that you will update such information promptly in the event that it changes. If you are using the Service on an enterprise level for multiple individual user accounts, then you shall designate one user as the administrative user who shall be responsible for registering and, if desired, editing the account information. Any change in the designation of the administrative user must be submitted to ThetaCalm by the current administrative user. You acknowledge that if any information provided by you is untrue, inaccurate, not current or incomplete, ThetaCalm may terminate your use of the Service.
You are responsible for maintaining the confidentiality of your account and for all activities which occur through the use of your account. You agree to: (i) immediately notify ThetaCalm of any unauthorized access to or use of your account or any other breach of security; and (ii) ensure that you secure your account, computer and mobile device from third party access. ThetaCalm will not be liable for any loss or damage arising from your failure to comply with this Section.
3. Grant of a Limited License
4. License Limitations
You agree that you will not and will not permit any party to:
- modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Service;
- duplicate, decompile, reverse engineer, disassemble or decode the Service (including any underlying idea or algorithm), or attempt to do any of the same;
- use, reproduce or remove any copyright, trademark, trade names, slogan, logos, images, service marks or other proprietary notations displayed on or through Service;
- frame or utilize any framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout or form) of ThetaCalm without our express consent;
- attempt to gain unauthorized access to, interfere with, damage or disrupt the Service, accounts registered to other users, or the computer systems or networks connected to the Service;
- circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Service;
- use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Service to monitor, extract, copy or collect information from or through the Service, or any manual process to do the same;
- introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
- use the Service for illegal, harassing, unethical, or disruptive purposes;
- violate any applicable law or regulation in connection with your use of the Service; or
5. Data and Intellectual Property Ownership
As between you and ThetaCalm, all software (including source code), logos, icons, the Service’s “look and feel,” text, graphics, images, video clips, sound clips, content, notices, data, page layout, and selection and arrangement of the content and all copyrights, patents, trade secrets, trademarks and other intellectual property rights therein are owned solely and exclusively by ThetaCalm and are protected by United States and international copyright, trade secret or other intellectual property laws and treaties. ThetaCalm and its licensors reserve all rights in connection with the Service and its content including, without limitation, the exclusive right to create derivative works therefrom. Except for the limited license granted to you in Section 3, you have no right, title or interest in or to the Service and any such content.
The ThetaCalm name and all related names, logos, product and service names, designs and slogans, including ThetaCalm, Neuropriming, and ThetaCalm LLC, are trademarks of ThetaCalm or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by ThetaCalm.
6. Third Party Websites, Apps or Resources
The Service may provide links to other websites, apps or resources by third parties (“Third Party Sites”). These Third-Party Sites are provided for your convenience only and are not reviewed, controlled, examined, sponsored, or endorsed by ThetaCalm and ThetaCalm is not responsible for the information, advertising, products, resources or other material of any Third-Party Site, or any link contained in a Third-Party Site. YOUR USE OF ANY SUCH THIRD-PARTY SITES IS AT YOUR OWN RISK. None of the ThetaCalm Parties (as defined in Section 13) shall be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of, inability to use or reliance on any such content, goods or services available on any Third-Party Sites.
7. Consult Your Doctor Before Using the Service
Our goal is to provide a useful Service, but we make no endorsement, representation or warranty of any kind about any information, services or recommendations made available on the Service. The accuracy of the data collected and presented through the Service is not intended to match that of medical devices or scientific measurement devices. The Service is not intended to diagnose or treat any disease or medical condition. If you have a medical or heart condition, consult your doctor before using the Service or engaging in an exercise program. You should not use the Service if you:
- are not capable of giving consent;
- are a woman who is pregnant or possibly pregnant (neurostimulation has not been thoroughly studied in pregnant women);
- have an active, implanted medical device such as a pacemaker, defibrillator, or other neurostimulator;
- have a skull defect (i.e., plate in the skull or previous reconstructive skull surgery) or any implant in the portion of the skull overlying the brain (neurocranium); or
- have a history of seizures.
Furthermore, the ThetaCalm System and ThetaCalm Device should not be used in any way contrary to the instructions for use provided by ThetaCalm. The ThetaCalm Device and its primers should not be used over broken skin.
If you experience a medical emergency, stop using the Service and consult with a medical professional. We are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through the Service. If you engage in any exercise program you receive or learn about through the Service you agree that you do so at your own risk and are voluntarily participating in these activities.
8. Alerts and Notifications
As part of your use of the Service, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You can control receipt of non-service related communications from your account settings. You are responsible for any messaging or data fees you may be charged by your wireless carrier.
9. Notice of Infringement – DMCA Policy
Anyone who believes that his or her work has been reproduced in the Service in a manner which constitutes copyright infringement may submit a notification to ThetaCalm’s copyright agent in accordance with the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:
- identification of the copyrighted work that is claimed to be infringed;
- identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service;
- information for our copyright agent to contact you, such as an address, telephone number, and, if available, e-mail address;
- a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;
- a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
- a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by notating this in your written notice. If you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.
Notices of copyright infringement claims should be sent by mail to: ThetaCalm LLC, at: Copyright Agent, ThetaCalm LLC 1333 W. McDermott Drive Suite 150 Allen, TX 75013; or by email to info@ThetaCalm.com. ThetaCalm will respond expeditiously to claims of copyright infringement using the Service that are reported to ThetaCalm’s copyright agent in the notification explained above. It is ThetaCalm’s policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
As a user of the Service, we may ask you from time to time for your input and feedback regarding the Service, or for other information relating to your experiences and practices relating to the Service. Any such input, feedback or information you provide will become our property and you assign all rights in such input, feedback and information to us, and we may use that information for our business or other purposes, including without limitation continuing to improve the Service.
13. Warranty Disclaimer
The Service may be temporarily unavailable from time to time for maintenance or other reasons. ThetaCalm shall have no responsibility for any interruption, delay in operation or transmission, theft or destruction of, unauthorized access to, or alteration of, any other content made available via the Service.
EXCEPT FOR THE WARRANTIES SET FORTH AT www.ThetaCalm.com/ WITH RESPECT TO THE THETACALM DEVICE AND THE SUPPORT SERVICES PROVIDED TO YOU BY THETACALM, YOU ACKNOWLEDGE AND AGREE THAT (A) THE SERVICE IS PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND AND (B) NONE OF THETACALM, ITS AFFILIATES, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS, SUPPLIERS OR ANY OTHER PERSON INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING ANY CONTENT OR SERVICES CONTAINED ON THE SERVICE (THE “THETACALM PARTIES”) MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND HEREBY DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY WARRANTY FOR ACCURACY, COMPLETENESS, LIKELY RESULTS, RELIABILITY, INFORMATION, DATA, DATA PROCESSING, UPTIME OR UNINTERRUPTED OR ERROR-FREE ACCESS AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, NON-INFRINGEMENT, OR OTHER VIOLATIONS OF RIGHTS. NONE OF THE THETACALM PARTIES ASSUME ANY RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES OR OTHER HARMFUL COMPONENTS THAT MAY INFECT, YOUR DEVICE IN CONNECTION WITH YOUR VIEWING OF OR ACCESS TO OR USE OF THE SERVICE.
14. Limitation of Liability
THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of ThetaCalm Parties shall be limited to the fullest extent permitted by law. THEREFORE, THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. Equitable Remedies
17. Dispute Resolution and Governing Law
- Restrictions. You and ThetaCalm agree that any arbitration shall be limited to the Dispute between ThetaCalm and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. Any Dispute not subject to arbitration, or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the County of San Francisco, State of Delaware, United States of America, and you hereby agree to submit to the personal jurisdiction of that court.
- Exceptions to Informal Negotiations and Arbitration. You and ThetaCalm agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or ThetaCalm’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.
18. Governing Law
19. Apple App Store
20. General Provisions
- No Waiver. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
- Headings. The section headings used herein are for reference only and shall not be read to have any legal effect.