Performance Mindset Terms of Service
Last Updated: August 18, 2021
1. Acceptance Of Agreement
1.1. Generally. Performance Mindset provides access to our Products, subject to your compliance with this Agreement. This Agreement is a legally binding agreement between you and Performance Mindset which governs the use of our Products and any related content features, and/or functionality provided by Performance Mindset.
1.2. Changes and Notice. Performance Mindset reserves the right to change this Agreement from time to time with or without notice to you. You acknowledge and agree that it is your responsibility to review this Agreement periodically. Your continued use of the Products after such modifications will constitute your acknowledgement and acceptance of the modified Agreement. Any modifications to this Agreement will become effective upon posting a revised version to the Site or in the App.
1.3. IMPORTANT - BY REGISTERING FOR THE PRODUCTS YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. THIS AGREEMENT CONTAINS A BINDING ARBITRATION AND CLASS ACTION WAIVER CLAUSE (SECTION 12.1) THAT LIMITS YOUR LEGAL RIGHTS. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT USE THE PRODUCTS. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THIS AGREEMENT IS TO CEASE USING THE PRODUCTS. THIS AGREEMENT IS EFFECTIVE ONCE YOU CHECK THE ACKNOWLEDGEMENT BOX AND CLICK THE “ACCEPT & CONTINUE” BUTTON OR SIMILAR BUTTON.
2. License & Access
2.1. License and Right to Access. Performance Mindset grants you a non-exclusive, non-transferable, revocable license to download and install the App and right to access and use the Site, Content, and your Account solely for your personal and non-commercial purposes during your Subscription or, if applicable, your trial period. You may not copy, modify, reproduce, distribute, sell, lease, publicly display, or create derivative works of any part of the Products or included software, nor may you reverse engineer or attempt to extract the source code of that software.
2.2. Account Registration. You may need to register for an Account in order to access, manage, use, or receive the Products. Any registration information that you provide to us must be accurate, current, and complete. You must also update your information so that we may send notices, statements, and other information to you by email or through your Account. You are responsible for all actions taken through your Account.
2.2.1. Child User. If you are under the age of 13 (a “Child User”), you may not create or register an Account for the Products without consent and approval from your parent or legal guardian (“Parent”). If you are under the age of 18 (or age of majority), you represent that your Parent has reviewed and agreed to the Agreement on your behalf. A Child User that begins the registration process for himself or herself without a Parent may have the registration process restricted until a Parent approves or assumes responsibility for the Child User Account. A Child User will only be permitted to use the Products for so long as Performance Mindset reasonably believes that such access has been consented to by the Child User's Parent.
2.2.2. Parental Consent. If you are at least 18 years of age (or age of majority) and you are the Parent of a child, you may register or consent to such child using the Products as a Child User. You may manage the information collected from a Child User as specified in our Privacy Policy. IF YOU REGISTER, APPROVE OR CONSENT TO THE REGISTRATION OF, OR OTHERWISE ASSUME RESPONSIBILITY FOR ANY CHILD USER, YOU REPRESENT AND WARRANT THAT YOU ARE SUCH CHILD USER'S PARENT AND YOU AGREE TO BE BOUND BY THIS AGREEMENT ON BEHALF OF SUCH CHILD USER, INCLUDING WITHOUT LIMITATION BEING LIABLE FOR ALL USE OF THE PRODUCTS BY THE CHILD USER.
2.3. Temporary Interruptions. You understand and agree that the Products may experience temporary interruptions as normal events that are out of our control. You also understand and agree that we have no control over the Internet, third-party networks, hosting providers, or services that we may use to provide you with our Products. You agree that the Products are provided “AS IS” and that we assume no responsibility for the timeliness, misdelivery, or failure to provide our Products.
2.4. Open Source Software. Open source software is important to us. Some software used in our Products may be offered under an open source license which may have provisions that expressly override some of these terms.
3. Purchases
3.1. Payment for Products. If payment is required for the Product Subscription that you selected, you authorize Performance Mindset and/or its payment service provider (which may be a third party payment network or in-app payment provider) to charge your credit card, debit card, or other payment method for the Subscription immediately upon the expiration of any free trial period provided by us. You represent and warrant that you will keep your payment information updated and that you are an authorized user of the payment method you use to purchase the Subscription and that you will not dispute the payment with your credit card company, bank, or other financial services institution, so long as the amount corresponds to the Subscription you selected.
3.2. Breach of the Agreement/Failure to Pay. If you breach any term or condition of this Agreement or fail to make any payment when due, Performance Mindset may immediately stop providing the Products to you. Performance Mindset has no liability if it stops providing the Products to you due to your breach or failure to pay.
3.3. Term/Renewal. The term of this Agreement will continue as long as you use the Products. Subject to the terms and conditions of any free Product offerings, free trial, or promotional period, the Subscription you select will begin when you are charged in accordance with Section 3.1.. If terminated, the Subscription ends on the last day you use any free Product offerings or the end of your current Subscription term for any paid Product.
3.4. Cancellation by You. You may cancel your Subscription at any time by taking appropriate action on your Account. If you cancel your Subscription, you will not be entitled to a refund for any for any fees you already paid or for partially used Subscription period(s), however you will continue to have access to the Product through the end of your current Subscription period.
3.5. Refund Policy. While we cannot issue refunds for one-month subscriptions, you may be able to receive a refund or partial refund for multi-month or annual subscriptions, depending on where you purchased your subscription.
3.5.1 If your subscription was purchased at www.neuro-fuel.com, you may contact info@neuro-fuel.com within 30 days of your purchase for a pro-rated refund.
3.5.2 If your subscription was purchased through the App Store, you will need to contact Apple directly with any refund requests. Apple can typically accommodate refund requests made within 30 days of purchase, but it will ultimately be at Apple’s discretion whether to honor the request or not.
3.5.3 If your subscription was purchased through Google Play, email info@neuro-fuel.com with (i) your request for a refund, (ii) your Google Play order number (begins with GPA), and (iii) the email associated with your Google Play Account, and we will work to fulfill your refund request through Google Play.
3.5.4 If you purchased a subscription longer than 30 days ago and your team or organization has decided to subscribe as a group, email info@neuro-fuel.com with (i) your team or organization’s name, and (ii) the email associated with your original subscription, and we can provide you with a complimentary voucher for the remainder of your subscription to share with a friend or family member.
4. Products Use & Conduct
4.1. User Conduct Guidelines: Your use of the Products is subject to all applicable laws and regulations, and you are solely responsible for your conduct and any use or misuse of the Products. By accessing the Products or by otherwise using any content, information, interfaces, communication services, features, or functionality of the Products, you agree that you will not use the aforementioned to:
4.1.1. post any obscene, pornographic, vulgar or offensive materials;
4.1.2. perform any unlawful, threatening, abusive, harassing, defamatory, deceptive, fraudulent, or tortious, acts including the invasive of another's privacy;
4.1.3. victimize, harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
4.1.4. infringe on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
4.1.5. to solicit advertising, junk or bulk email (spam), any other form of unauthorized solicitation, or any form of lottery or gambling;
4.1.6. write or inject any form of malicious code, files, or programs that are designed or intended to disrupt, damage, or limit the functionality of any of the Products, hardware, or telecommunications equipment or otherwise causes damage, or allows you to obtain unauthorized access to any data or other information of any third party;
4.1.7. breach the security of, compromise or otherwise allow access to secured, protected or inaccessible areas of the Products or attempt to gain access to other networks or servers via the Products;
4.1.8. impersonate any person or entity, including any of our employees or representatives.
4.1.9. gain unauthorized access to the Products or Accounts of another individual or entity.
5. Third-Party Services
5.1. Third-Party Sites and Information. Our Products may redirect, link to, or link from other websites, applications, or programs, and may otherwise include references to information, products or services made available by third parties. While we make efforts to work with reputable third parties, from time to time such sites may contain information or materials that may not accurately reflect our Products. You understand that we are not responsible for the accuracy, completeness, or legality of content hosted by third parties, nor are we responsible for errors or omissions in any references made on those third-party websites, applications, or programs. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association between our Products and such third parties, or any warranty of any kind, either express or implied. If you decide to access any third-party materials linked to in our Products, you do so entirely at your own risk and subject to the terms and conditions of use for such third-party websites.
6. Intellectual Property
6.1. IP Ownership. By accepting this Agreement, you agree that the Products, including the App, Site, Content, and Account are protected by any and all intellectual property or proprietary rights, including but not limited to copyrights, moral rights, trademarks (trade names and service marks), patents (including patent applications) and trade secrets, recognized in any country or jurisdiction in the world, and are the sole property of Performance Mindset. All features, functionality, software, custom graphics, icons, logos and service names are registered trademarks, trademarks or service marks of Performance Mindset. All other trademarks or service marks are property of their respective owners. Nothing in this Agreement grants you any right or license to use any trademark, service mark, logo, and/or the name of Performance Mindset. Except as provided under this Agreement, you may not use the aforementioned Products, including the App, Site, Content, and Account without prior written consent from Performance Mindset.
6.2. Limitations on Use. You may not copy, reproduce, modify, republish, upload, post, transmit, or distribute the Products, including the App, Site, Content, and your Account in any form or by any means whatsoever without prior written permission from Performance Mindset. Any unauthorized use our Products that violates our intellectual property rights could result in criminal or civil penalties.
6.3. Feedback License Grant. You agree that Performance Mindset may use your feedback, suggestions, or ideas in any way, including implementing future modifications or enhancements into the Products, other products or services, and advertising or marketing materials. You grant Performance Mindset a perpetual, worldwide, fully transferable, sublicensable, irrevocable, fully paid-up, royalty free license to use the feedback suggestions, or ideas you provide to Performance Mindset in any way.
7. Privacy & Security
7.1. Privacy. By entering and agreeing to this Agreement, you acknowledge and agree to Performance Mindset’s Privacy Policy (“Privacy Policy”). Performance Mindset’s collection and use of personal information in connection with the Products is subject to our Privacy Policy. You are solely responsible for the information you provide Performance Mindset and your interactions with our Products.
7.2. Passwords & Security. You agree that you are responsible for maintaining the security and confidentiality of your password and that you are fully responsible for all activities or charges that are incurred in the Products under your Account. Therefore, you must take reasonable steps to ensure that others do not gain access to your password and Account. You acknowledge that you are responsible for any unauthorized access to the Products or activity on your Account due to your mishandling of your username or password, including any unauthorized fees due to your mishandling. Performance Mindset will never ask you for your password.
8. Disclaimer
8.1. No Warranties. TO THE FULLEST EXTENT ALLOWED BY LAW, ALL PRODUCTS, INCLUDING THE APP, SITE, ACCOUNT, AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE PRODUCTS WILL MEET YOUR REQUIREMENTS, (B) THE PRODUCTS WILL OPERATE UNINTERRUPTED, TIMELY, OR SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY SERVICES PURCHASED OR OBTAINED BY YOU FROM THE PRODUCTS WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
THE PRODUCTS COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. WE MAY MAKE CHANGES TO THE CONTENT AND PRODUCTS ON THE SITE, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS OR OFFERINGS LISTED HEREIN, AT ANY TIME WITHOUT NOTICE.
THE USE OF THE PRODUCTS OR CONTENT THROUGH THIS SITE IS AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
8.2. Product Disclaimer. You understand and agree that the Products and any other information you RECEIVE from PERFORMANCE MINDSET are INTENDED FOR INFORMATIONAL OR EDUCATIONAL PURPOSES ONLY AND ARE not intended, designed, or implied to diagnose, prevent, or treat any condition or disease, to ascertain the state of your PHYSICAL OR MENTAL health, or to be a substitute for professional medical care. Not all activities described on the Products are suitable for everyone. Do not use the Services while driving or performing other tasks that require attention and concentration. You understand and agree that you are solely responsible for your use of the PRODUCTS.
9. Limitation Of Liability
9.1. Liability Limitation. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL PERFORMANCE MINDSET, ITS AFFILIATES, OR ITS LICENSORS, SERVICE PROVIDERS, EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE THE PRODUCTS, INCLUDING THE APP, SITE, ACCOUNT, AND CONTENT, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
10. Indemnification
10.1. Indemnification. You agree to defend, indemnify, and hold harmless the Performance Mindset, our affiliates, licensors, service providers, employees, contractors, agents, officers, directors, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to (i) your violation of this Agreement or (ii) your use of the Products, including, but not limited to, any use or access to the App, Site, Content, and your Account. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
11. Suspension/Termination
11.1. Suspension or Termination. You agree that we may, in our sole discretion, terminate or suspend your access to the Products, including any use or access to the App, Site, Content, and your Account with or without notice and for any reason, including, without limitation, for your failure to pay or breach of this Agreement. Any suspected fraudulent, abusive, or illegal activity may be grounds for barring your access to the Products reporting you to the proper authorities, if necessary.
12. Disputes/Arbitration
12.1. Arbitration Agreement/Class Action Waiver. You agree that any legal disputes or claims arising out of or related to this Agreement (including without limitation claims related to the use of the Products, the interpretation, enforceability, revocability, or validity of this Agreement, or the arbitrability of any dispute) shall be submitted to binding arbitration in Omaha, Nebraska. The arbitration will be conducted before a single arbitrator in accordance with the then existing Commercial Arbitration Rules of the American Arbitration Association, including the Optional Rules for Emergency Measures of Protection, or as otherwise mutually agreed by you and Performance Mindset. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims must be brought within the statute of limitations or other time required by applicable law. You agree that you shall bring any claim, action or proceeding arising out of or related to the Agreement in your individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The arbitrator may not consolidate the claims of more than one person and may not otherwise preside over any form of a representative, collective, or class proceeding. YOU ACKNOWLEDGE AND AGREES THAT YOU AND PERFORMANCE MINDSET ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING IN ANY FORUM.
13. Miscellaneous
13.1. International Use. Although our Products may be accessible worldwide, we make no representation that the aforementioned are appropriate or available for use in locations outside the United States. Those who choose to access our Products from other locations do so on their own initiative and at their own risk. If you choose to access our Products from outside the United States, you are responsible for compliance with local laws in your jurisdiction, including but not limited to, data export/transfer laws and privacy laws. Any offer and/or information made in connection with is the Products are void where prohibited.
13.2. Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Nebraska, without regard to the conflicts of laws principles thereof. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated under this Agreement shall be brought in the federal courts of the United States of America or the courts of the State of Nebraska in each case located in the City of Omaha and County of Douglas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The parties irrevocably and unconditionally waive any objection to venue of any suit, action, or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
13.3. Notices. All notices to a party shall be in writing and shall be made electronically via email. Notices to us must be sent to the attention of ”Legal” at info@neuro-fuel.com. You agree to allow us to submit notices to you at the email address we have on record for your Account. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
13.4. No Resale Right. You agree not to sell, resell, reproduce, duplicate, distribute, copy, develop any competitive product or use the Products for any commercial purposes, or use or access the Products beyond the limited rights granted to you under this Agreement.
13.5. Force Majeure. You understand that we shall not be liable for the Products being unavailable or for the non-delivery or delay in delivery of Products arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to: labor disturbance, pandemic or public health event, war, fire, accident, adverse weather, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.
13.6. Severability. If any section in this Agreement, in whole or in part, is held to be invalid or unenforceable, that section or portion thereof shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining section or portions thereof shall remain in full force and effect.
13.7. No Waiver. Any failure by us to enforce or exercise any provision of this Agreement or related rights shall not constitute a waiver of that right or provision.
13.8. Survival. Upon termination of the Agreement, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 1, 2.2-2.4, and 3 through 14.
13.9. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties concerning the Products. This Agreement may not be altered, supplemented, or amended unless mutually agreed to by both parties in writing.
14. Definitions
14.1. “Account” means the account established with Performance Mindset to access, enable, and manage the Products.
14.2. “Agreement” means these Performance Mindset Terms of Service, as may be amended from time to time.
14.3. “App” means Performance Mindset’s NeuroFuel mobile and/or web application which provides sports training, visualization, meditation, relaxation, self-improvement, and/or other services provided by Performance Mindset.
14.4. “Content” means all materials including text, graphics, images, music, software, audio, video, tutorials, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the App or Site, in your Account, or related to our Products.
14.5. “Performance Mindset” means Performance Mindset LLC and its successors, affiliates, and assigns.
14.6. “Products” means the App, Site, Account, Content, or other products and services provided by Performance Mindset.
14.7. “Site” means the Performance Mindset website at www.neuro-fuel.com including all functionality, content, information, graphics, designs, and interfaces.
14.8. “Subscription” means the Product plan you purchase to access the Products.
14.9. “Us, “we”, or “our” means Performance Mindset.
14.10. “You” or “your” means any person or entity who accesses or uses the Products.