MASK OF WELLNESS, LLC TERMS AND CONDITIONS AGREEMENT
UPDATED May 22, 2020
This agreement (or “Agreement”) is a legal agreement between the person, company or organization (“You”) that has accessed an application/ service/ safety process (“Product”) and Mask of Wellness, LLC (“Licensor” or “Application Provider”). The Product is to be accessed is at www.maskofwellness.com. By using any Product provided by the Licensor, You are confirming your acceptance of this agreement and you are agreeing to become bound by the terms of this Agreement.
This EULA shall apply only to a Product supplied by the Licensor herewith regardless of whether other software or platform is referred to or described herein.
The Product transacted through the Services are licensed, not sold, to You for use only under the terms of this license. The Application Provider reserves all rights not expressly granted to You. The Product that is subject to this license is referred to in this license as the “Licensed Application.” The Licensed Application is to be used on devices including computers that operate with Apple’s operating systems (“iOS” and “Mac OS”), Microsoft OS, Google’s operating system (“Android”) and or such other operating systems and the aforementioned devices are referenced in this license as “Devices”.
The purpose of the Product is to allow You or You on behalf of a business to learn about and promote ‘Covid-Conscious’ Businesses, to join with other businesses in promoting safety and wellness in their communities and to register your business as a ‘Covid-Conscious’ compliant business. By accessing this Product, YOU agree to use the Product for the purpose defined herein and as contained in the Product.
IT IS IMPORTANT THAT YOU CAREFULLY READ AND UNDERSTAND THIS AGREEMENT. BY ACCESSING AND USING THIS PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE TERMINATE ALL USE OF THE PRODUCT, OTHERWISE, YOU HEREBY WARRANT, REPRESENT, COVENANT AND CERTIFY THE FOLLOWING:
YOU possess the legal right and ability to enter into this Agreement and comply with its terms, including authority to enter into this Agreement on behalf of YOUR employer or other organization on whose behalf YOU are using the Product, and YOUR acceptance of this Agreement on behalf of such employer or entity shall be binding on such employer or organization, if applicable;
YOU are of a lawful age in YOUR jurisdiction to enter into this Agreement and install and use the Product;
YOU will only use the Product for the purpose intended; YOU will properly follow all instructions and documentation provided by Licensor to YOU;
YOU will only use on a computer or access the Product on mobile devices for which YOU are the authorized owner or on mobile devices for which YOU have been given express permission use the Product by the device owners;
All information that YOU provide to Licensor is true and accurate, including, without limitation, YOUR identity, account information, information about any organization YOU are affiliated with, and any other related information that may be requested;
YOU shall not misrepresent YOUR association with a charitable or political organization or otherwise use the Service in such a way as to defraud individuals;
YOU will not use the Product in violation of any Federal, State or local law, rule, ordinance or governmental regulation, including those governing financial services, consumer protections, unfair competition, anti-discrimination, privacy or false advertising;
YOU agree at all times to comply with the Office of Foreign Assets Control (OFAC) policies and guidelines and YOU shall not enter into any transactions or use the Service in violation of OFAC policies or guidelines, including, without limitation, sending or receiving funds from or to persons on the blocked persons list or to or from sanctioned countries; and
YOU agree not to use the Service for transactions that involve or relate to:
- narcotics, steroids, certain controlled substances, drug paraphernalia or other products that are illegal;
- items that encourage, promote, facilitate or instruct others to engage in illegal activity;
- stolen goods including digital and virtual goods;
- certain sexually oriented materials or services;
- ammunition, firearms, or certain firearm parts or accessories;
- certain weapons or knives regulated under applicable law;
- supporting pyramid or Ponzi schemes;
- violating applicable laws or industry regulations regarding the sale of tobacco products or prescription drugs; or
- gambling, gaming, and/or any other activity with an entry fee and a prize, including casino games, sports betting, lottery tickets, and other similar activities.
1. USE REQUIREMENTS
1.1. Account. YOU may create an account (an “Account”) to access the Product and use the features contained therein. To create an Account, YOU will be required to provide certain information, including YOUR name, business information, email address, mailing address, phone number and personal and business information that you choose to provide. YOU may also need to create a screen name. Maintaining Account security is very important. YOU are entirely responsible for maintaining the confidentiality of any Account username and password. YOU agree to monitor YOUR Account and notify Licensor immediately if YOU believe that an Account username and/or password have been compromised or if YOU suspect unauthorized payments or charges are occurring through YOUR Account. All processing of payments are transacted by a third party vendor or business, and the payee vendor’s terms and conditions shall apply to any transaction and debits. Licensor shall not be responsible for any acts, errors or events that occur on third-party websites used for payment on account.
By signing up YOU choose to have YOUR business listed on a directory of ‘Covid- Conscious’ businesses provided by the Licensor. The Licensor shall determine the information to be made available for search by other users and the design of said information. YOUR business will only be contained in the directory if YOU opt-in. YOU have a duty to notify Licensor if YOU wish to be removed from the directory. Any complaints to the Licensor that are sent to or provided to the Product, may result in the removal of YOUR business from the directory. The Licensor shall have unilateral and complete control of the directory.
1.2. Updates. Licensor may require that YOU download and install updates to the Product from time to time. YOU acknowledge and agree that Licensor may update the Product with or without notifying YOU and add or remove features or functions to the Product at any time in its sole discretion. YOU acknowledge and agree that Licensor has no obligation to make the Product available to YOU, make any subsequent versions of the Product available to YOU or to continue to support the Product in any way. YOU acknowledge that YOUR access to the Product may not be continuous, features may change during YOUR use of the Product, and Licensor may terminate YOUR access to the Product or stop offering the Product at any time pursuant to the EULA.
1.4. Use of Product and Materials. YOU may use materials from the Product including the designated logos on YOUR business website or in YOUR business to demonstrate that YOU are seeking to comply with ‘Covid-Conscious’ practices. Use of the designated logos shall indicate that YOUR business is following recommended wellness guidelines. The Licensor has the right to demand at anytime that YOU remove the designated logo from YOUR website or business premises and to terminate YOUR right to use of the designated logo.
1.5 Certification. YOUR business may self-certify that it is compliant with recommendations for safety and wellness as provided by the Product. By self-certifying, as described in the Product, the Licensor is not guaranteeing YOUR safety or the safety of YOUR clients, employees, or customers. Recommendations provided in the Product are based on national guidelines which change from time to time. Following the guidelines may mitigate the risk of spread of the virus causing Covid-19 and other diseases but does not guarantee safety or the prevention of spread of disease. Ultimately, it is up to each business and individuals to follow recommendations from relevant national or local organizations related to safety guidelines such as the CDC or OSHA.
2. LICENSE AND RESTRICTIONS.
2.1. License. Subject to the terms and conditions of this Agreement, Licensor hereby grants YOU a limited, non-exclusive, revocable license to (i) use the Product on one or more devices which are owned by YOU, are under YOUR control and which meet Licensor’s minimum specifications, (ii) view, review and utilize the Product and any related information provided to YOU by Licensor and (iii) transmit payment information through the Service by utilizing the relevant links.
2.4. No Data Mining or Harmful Code. YOU agree that YOU will not (i) obtain or attempt to obtain any information from the Service, including without limitation email or payment information of other Account holders or other Product data; (ii) intercept, examine or otherwise observe any proprietary communications protocol used by the Product or the Service, whether through the use of a network analyzer, packet sniffer or other device; or (iii) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Product, the Site or the Service.
2.5. Misuse of the Product and/or Service. YOU may not connect to or use Product and/or Service in any way not expressly permitted by this Agreement or the TOU. Without limiting the foregoing, YOU agree that YOU will not: (i) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Service or otherwise attempt to disrupt the Service or any other person’s use of the Product and/or Service; or (ii) attempt to gain unauthorized access to the Service, Accounts registered to other users or the computer systems or networks connected to the Service. Furthermore, YOU may not use the Product and/or Service in association with, or to develop, generate, transmit or store, information that: (a) is defamatory, harmful, abusive, obscene or hateful; (b) in any way that obstructs or otherwise interferes with the normal performance of another person’s use of the Service; (c) performs any unsolicited commercial communication not permitted by applicable law; (d) constitutes harassment or a violation of privacy or threatens other people or groups of people; (e) is harmful to children in any manner; (f) violates any applicable law, regulation or ordinance; (g) makes any false, misleading or deceptive statement or representation regarding Licensor, the Product and/or Service; or (h) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).
2.6 Location Services. This Product may use location data sent from YOUR device. YOU can turn off the location functionality at any time by turning off the location services setting for the Product on YOUR device. If YOU choose to use the location function, YOU consent to Licensor and our licensees’ transmission, collection, maintenance, processing and use of YOUR location data and queries to improve and provide location-based products and services. YOU may withdraw this consent by turning off the location services setting on YOUR device.
3. OWNERSHIP. Licensor retains all right, title and interest in and to the original and any copies of the Product, Service, Service Data and related information, improvements, enhancements or derivatives thereto and ownership of all intellectual property and proprietary rights recognized anywhere in the world pertaining thereto, in whole or in part, shall be, vest with, and remain the exclusive property of Licensor. The Product, Service, Service Data and related written materials are protected by the copyright and patent laws of the United States and international copyright and patent treaties. YOU shall not be an owner of any copies of, or have any interest in the Product, Service or Service Data that may be provided, documentation, or other information.
4. INDEMNIFICATION. YOU agree to defend, indemnify and hold harmless Licensor and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents, network service providers, business partners and licensors (collectively, the "Indemnified Parties") at YOUR expense, against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys' fees and other dispute resolution expenses) incurred by the Indemnified Parties arising out of or relating to (a) YOUR violation or breach of any term of this Agreement or any policy or guidelines referenced herein; (b) YOUR use or misuse of the Product, Service or Service Data; or (c) any violation of data protection or privacy laws through YOUR use or misuse of the Product, Service, YOUR Account or the Service Data. Further, YOU warrant and indemnify the Licensor as to any information that is uploaded for use with the Product, including any names, businesses or organizations, and acknowledge that all subscribers and user information uploaded and used in the Product is with the permission and consent of the individual, business and/or organization and indemnify and protect the Licensor against any contrary claim.
5. CONFIDENTIALITY. YOU shall maintain in strict confidence, and not use or disclose to others during or after the term of this Agreement any non-public information, proprietary information, trade secrets, or technical data relating to the Product disclosed by Licensor or otherwise obtained by YOU as a result of, or in connection with, your use of the Product (“Confidential Information”); provided, however, these obligations shall not apply to Confidential Information which: (a) is publicly available prior to disclosure or becomes publicly available thereafter not as a result of an act or omission by YOU; (b) YOU rightfully obtain from a third party without confidentiality obligations; (c) is in YOUR possession without confidentiality obligations prior to disclosure; or (d) is approved in writing by Licensor for release.
6. ASSIGNMENT OF FEEDBACK
6. ASSIGNMENT OF FEEDBACK. Licensor shall exclusively own and have title to all feedback, reports, images, and any modifications or derivatives of the Product. YOU agree to assign, and do hereby irrevocably assign, to Licensor all right, title and interest in and to the foregoing, including assignment to Licensor of all ownership interest in any feedback, reporting, results, or any other related diagnostic or customer service information associated with YOUR use of the Product and related written materials. The foregoing shall not apply to YOUR proprietary information, if any, disclosed to Licensor.
7. DISCLAIMER OF WARRANTY.
7. DISCLAIMER OF WARRANTY. THE PRODUCT, SERVICE AND SERVICE DATA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. LICENSOR MAKES NO WARRANTY OR CONDITION AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OR NON-PERFORMANCE OF, THE PRODUCT, SERVICE OR SERVICE DATA INCLUDING THE FAILURE OF A SENDER’S MESSAGE OR COMMUNICATION TO BE TRANSMITTED BY THE PRODUCT, MOBILE APP OR SERVICE OR RECEIVED BY AN INTENDED RECEIVER. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE PRODUCT, MOBILE APP, SERVICE AND/OR SERVICE DATA IS AT YOUR SOLE RISK. LICENSOR DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE PRODUCT, SERVICE AND/OR SERVICE DATA AT THE TIMES OR LOCATIONS OF YOUR CHOOSING OR IN THE EVENT OF AN EMERGENCY OR NOTIFICATION OF AN EMERGENCY; THAT THE PRODUCT, SERVICE OR SERVICE DATA WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PRODUCT, SERVICE OR SERVICE DATA ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHER, LICENSOR DOES NOT REPRESENT AND WARRANT THAT YOU WILL RECEIVE PAYMENT OR GOODS AND SERVICES FROM THIRD PARTIES WHEN CONDUCTING TRANSACTIONS THROUGH THE PRODUCT AND/OR SERVICE, THAT YOU WILL RECEIVE REFUNDS FROM PAYEES, THAT CHARGEBACKS WILL NOT OCCUR, OR THAT ANY MOBILE PAYMENT READER WILL WORK OR FUNCTION CORRECTLY AND/OR ACCURATELY WITH THE PRODUCT AND/OR SERVICE. FURTHER, FOLLOWING THE RECOMMENDATIONS AND MATERIALS POSTED ON THE PRODUCT DOES NOT GUARANTEE SAFETY, PROTECTION OR AVOIDANCE OF COVID OR ANY OTHER TRANSMITABLE ILLNESS OR DISEASE, AND THE LICENSOR DOES NOT WARRANT ANY SPECIFIC OUTCOME OR CONSEQUENCE BY FOLLOWING RECOMMENDATIONS AND MATERIALS. YOU ACKNOWLEDGE THAT YOU ARE ULTIMATELY RESPONSIBLE FOR YOUR SAFETY AND PROTECTION AND THE SAFETY AND PROTECTION OF YOUR CLIENTS, EMPLOYEES, OR CUSTOMERS AND ACKNOWLEDGE THAT THE CONTENT OF THE PRODUCT IS FOR COMMUNITY BENEFIT BUT DOES NOT WARRANT OR GUARANTEE ANY AVOIDANCE OF ILLNESS, DISEASE OR CONDITION.
8. LIMITATION OF LIABILITY.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR ITS AFFILIATES, LICENSORS OR BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) HAVE ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR (I) ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, LOST PROFITS OR SALES, OR LOST OR CORRUPTED DATA ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE PRODUCT, SERVICE AND/OR SERVICE DATA, EVEN IF LICENSOR AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) THE COST OF PROCURING SUBSTITUTE PRODUCTS, TECHNOLOGY, SERVICES OR RIGHTS. IN ADDITION, IN NO CASE SHALL THE LIABILITY OF LICENSOR OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT OF FEES THAT WE RECEIVE FROM PAYMENTS MADE TO YOU THROUGH THE SERVICE DURING THE SIX (6) MONTHS PRIOR TO THE TIME THE CAUSE OF ACTION GIVING RISE TO LIABILITY AROSE.
9. TERM AND TERMINATION.
9. TERM AND TERMINATION. This Agreement will take effect on the date YOU access and utilize the Product and will continue in effect unless terminated earlier pursuant to this Section. This Agreement may be terminated by YOU at any time by ceasing all use of the Product, notifying Licensor and uninstalling the Product. Licensor may terminate this Agreement at any time, with or without cause, by providing notice to YOU and/or preventing YOUR access to the Service through the Product. Upon termination of this Agreement for any reason, or Licensor’s request to YOU, YOU must immediately remove the Product and Service Data from YOUR computers, mobile devices (or other mobile devices upon which YOU have installed the Mobile App) and dispose of all originals and copies of the Product and Service Data in YOUR possession. Notwithstanding termination or expiration of this Agreement, YOUR representations, warranties, covenants and certification throughout this Agreement shall survive. All licenses granted hereunder shall terminate upon the termination or expiration of this Agreement. Termination shall be in addition to any rights and remedies available to either party at law or equity or under this Agreement.
10. BINDING ARBITRATION.
10.1. Arbitration Procedures. YOU and Licensor agree that, except as provided in Section 10.4 below, all disputes, controversies and claims related to this Agreement (each a "Claim"), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the "JAMS Rules") and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Section 10 and the JAMS Rules, the terms in this Section 10 will control and prevail. Except as otherwise set forth in Section 10.4, YOU may seek any remedies available to YOU under federal, state or local laws in an arbitration action. As part of the arbitration, both YOU and We will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator's decision regarding the Claim, the award given and the arbitrator's findings and conclusions on which the arbitrator's decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) YOU and Licensor may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator's decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND LICENSOR WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
10.2. Location. The arbitration will take place in YOUR place of residence if YOU so notify Licensor in YOUR notice of arbitration or within ten (10) days following receipt of Licensor’s arbitration notice. In the absence of a notice to conduct the arbitration in YOUR hometown area, the arbitration will be conducted in Nebraska, unless the parties agree to video, phone and/or internet connection appearances.
10.3. Limitations. YOU and Licensor agree that any arbitration shall be limited to the Claim between Licensor and YOU individually.
YOU AND LICENSOR AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
10.4. Exceptions to Arbitration. YOU and Licensor agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of YOUR or Licensor’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any Claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
11. YOUR CONSENT
This Agreement may be amended only by a writing executed by both parties unless modified from time to time by Licensor and posted on the Site. The next time YOU use the Mobile App or Product after such an update, YOU may be prompted to agree to or decline an update of this Agreement. YOU must agree to all revisions if YOU choose to continue using the Product. By using the Product, YOU agree to the then-current version of this Agreement as posted on the Site. If at any point YOU do not agree to any portion of the then-current version of this Agreement, YOU must immediately stop using the Product and uninstall the Product or Mobile App. This Agreement shall be is governed by, and will be construed under, the laws of the United States of America and the laws of the State of Iowa, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 10 above (and claims proceeding in any small claims court), all disputes arising out of or related to YOUR use of the Product, Mobile App, Service and/or Service Data shall be subject to the exclusive jurisdiction of the state and federal courts located within Iowa and YOU agree to submit to the personal jurisdiction and venue of such courts. This Agreement constitutes the entire, final and integrated agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous understandings and communications, whether oral or written, between the parties relating to the subject matter hereof. Licensor reserves any rights or licenses other than those specifically granted herein. This Agreement shall not be assigned (by operation of law or otherwise) or transferred in any manner by YOU without the prior written consent of Licensor and any attempted assignment without Licensor’s consent shall be null and void. YOU will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, YOU will not, and YOU will require YOUR representatives not to, export, direct or transfer the Product, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls. If YOU are, or are entering into this Agreement on behalf of, any agency or instrumentality of the United States Government, the Product is “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Product or Mobile App are governed by the terms of this Agreement. YOU acknowledge that a breach of this Agreement would cause irreparable injury to Licensor for which monetary damages are not an adequate remedy. Accordingly, We shall be entitled to seek injunctive relief and other equitable remedies in the event of such breach
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CONTINUING TO USE OR INSTALL THE PRODUCT OR MOBILE APP, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS.