THE FASTMIND, LLC “APENSAR/WORDIE” MOBILE APPLICATION
The FastMind, LLC (“THE FASTMIND” or “we”) has created a computer game mobile application commonly known as “Apensar/Wordie” (the “App”) that can be downloaded by users at websites operated by Google, Apple, Amazon, and other mobile application distributors (the “App Stores”). The terms “You” and “Your” refers to the users of App, or their parents or legal guardians if the user is a minor under the age of eighteen (18) years. You must accept this Agreement as a condition of downloading and activating the App by clicking on the “I Accept” Icon at the time you download the App from an App Store. At THE FASTMIND’s discretion, You may also be required to create an THE FASTMIND Account as a further condition of Your continued use of the App. You represent and warrant to THE FASTMIND that You have full power and authority to bind Yourself, or if you a minor under the age of eighteen (18) years, that Your parent or legal guardian has consented to Your acceptance of this Agreement and agrees to be bound by the terms and conditions of this Agreement.
BY ACCESSING OR USING THE APP AND BY REGISTERING FOR AND USING ANY THE FASTMIND ACCOUNT, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ANY OTHER ADDITIONAL TERMS INCORPORATED BY REFERENCE HEREIN. YOU ARE ONLY AUTHORIZED TO USE THE APP AND ANY THE FASTMIND ACOUNT (REGARDLESS OF WHETHER YOUR ACCESS OR USE IS INTENDED) IF YOU AGREE TO ABIDE BY ALL APPLICABLE LAWS AND BY THE TERMS OF THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE WITH IT, YOU SHOULD IMMEDIATELY DISCONTINUE YOUR USE OF THE APP, DELETE THE APP FROM YOUR MOBILE DEVISE, AND TERMINATE YOUR USE OF ANY THE FASTMIND ACCOUNT YOU MAY HAVE CREATED.
- Modifications to this Agreement.
THE FASTMIND may modify this Agreement from time to time, and any such modifications shall be effective upon THE FASTMIND’s delivery to You of notice of such modifications through the App, Your THE FASTMIND Account, if any, or by email. Your continued use of the App or Your THE FASTMIND Account after THE FASTMIND’s delivery to You of notice of its modifications to this Agreement shall be deemed to be Your acceptance of such modifications or changes to this Agreement. It is therefore important that You review this Agreement each time You use the App or access any THE FASTMIND Account to ensure that You are aware of any changes or modifications to this Agreement.
- Your Obligations.
When You accept this Agreement or create an THE FASTMIND Account, You represent and warrant to THE FASTMIND that:
- You will provide true, accurate, and complete information about Yourself when downloading the App, or as may be prompted by any THE FASTMIND Account registration processes, including, without limitation, Your name and a valid email address;
- You will update Your contact information in order to maintain its accuracy, and completeness;
- You are at least eighteen (18) years of age and have the legal capacity and authority to be bound by this Agreement, or that You are over the age of thirteen (13) and Your parent or legal guardian has consented to your downloading the App and has agreed to be bound by this Agreement;
- You have full authority to bind Yourself to the terms under which THE FASTMIND will provide the App and its related functionality;
- You will, as provided herein, defend, indemnify and hold harmless THE FASTMIND, and its subsidiaries, affiliates, officers, employees, agents, and other partners against any and all damages of any type, costs, fees, expenses, judgments, or liabilities of any kind, including reasonable attorneys fees, costs, and litigation or arbitration expenses at any initial trial or hearing, or on appeal, or to enforce any judgment or arbitration award, arising from claims asserted by a third party alleging facts that if proven to be true would constitute Your breach of any of Your duties, obligations, representations or warranties to under this Agreement or to such third party;
- You will comply with any and all federal or state laws, rules, or regulations of the United States or any foreign country that may govern Your use of the App or Your activity within Your THE FASTMIND Account, if any; and
- Obligation for Using Your Password When Accessing Any THE FASTMIND Account.
IF THE FASTMIND REQUIRES OR INVITES YOU TO CREATE AN THE FASTMIND ACCOUNT AS A CONDITION OF YOUR USE OF THE APP, ALL INFORMATION TRANSMITTED BY, SUBMITTED BY, OR RECEIVED FROM ANYONE PRESENTING YOUR PASSWORD TO ACCESS YOUR THE FASTMIND ACCOUNT WILL BE DEEMED BINDING ON YOU. You agree that You are solely liable for all actions taken by anyone using Your password, whether or not made with Your knowledge or authority. You agree to guard Your password carefully, with the full awareness that a failure to keep it secure will enable others to engage in transactions through the App or Your THE FASTMIND Account for which You will be legally responsible, and liable to THE FASTMIND for any resulting damages. If You suspect that someone may have obtained access to Your THE FASTMIND Account password who is not intended to have authority to act on Your behalf, please contact THE FASTMIND immediately to enable THE FASTMIND to deny access to Your THE FASTMIND Account to anyone else presenting Your password.
- Use of the App and Any THE FASTMIND Account.
- Lawful Purposes.You represent and warrant that You will not use the App or any THE FASTMIND Account for any purpose that is unlawful, or prohibited by this Agreement, or any law or regulation applicable to You.
- Use of Information.THE FASTMIND may display on the App, or on Your THE FASTMIND Account, if any, information, tips, facts, views, and opinions that THE FASTMIND deems worthy of publication. ALL SUCH INFORMATION IS FOR YOUR PERSONAL ENTERTAINMENT AND ENJOYMENT ONLY AND SHOULD NOT BE CONSIDERED OR RELIED UPON BY YOU WHEN TAKING ANY ACTION THAT MAY HAVE A FINANCIAL IMPACT ON YOU.Neither the App, any THE FASTMIND Account, any THE FASTMIND Content, or any data, information, text, images, or other content accessible on or through the App or any THE FASTMIND Account may be duplicated, modified, reengineered, decompiled, reverse engineered, decrypted, reassembled, supplemented, translated, adapted, or enhanced, except by THE FASTMIND or as expressly authorized by THE FASTMIND in writing. You shall not remove any notice or other indicia of an intellectual property right from the App, any THE FASTMIND Account, or any THE FASTMIND Content. You shall not use, copy, distribute, display, demonstrate, or sub-license the App, any THE FASTMIND Content, or any other information accessible through the App or any THE FASTMIND Account, the software related thereto, or any component thereof, except as permitted by this Agreement, or as expressly authorized by THE FASTMIND. You acknowledge and agree that You are solely responsible for Your use of the App, any THE FASTMIND Content, and any THE FASTMIND Account and for Your compliance with any laws and regulations relating to such use.
You agree to pay promptly, and in accordance with terms and conditions applicable to the App Store at which You downloaded the App, or displayed on Your THE FASTMIND Account, if any, for any features, services, or THE FASTMIND Content for which a fee is due and owing by You by reason of requests by You for such features, services or Content, including any Virtual Money as further provided herein.
- THE FASTMIND App and Account Security.
You are prohibited from violating or attempting to violate the security of the App, any THE FASTMIND Account, or any THE FASTMIND Content available to You through the App or any THE FASTMIND Account, including, without limitation:
- Accessing data not intended for Your use, or logging onto a server or an THE FASTMIND Account that You are not authorized to access.
- Attempting to probe, scan or test the vulnerability of the App, any THE FASTMIND Account, or any THE FASTMIND system or network, or to breach security or authentication measures utilized by THE FASTMIND without proper authorization.
- Attempting to interfere with the operation of the App by other users, THE FASTMIND’s services to any other THE FASTMIND Account holder, host or THE FASTMIND network, including, without limitation, via means of submitting a virus to any THE FASTMIND computer equipment or system, overloading, “flooding,” “spamming,” “mailbombing” or “crashing” any THE FASTMIND system, website, or other automated functionality.
- Sending unsolicited email, including promotions and/or advertising of products or services through the communication functionality available through the App not otherwise expressly authorized or permitted by THE FASTMIND.
- Forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting.
Violations of THE FASTMIND’s system or network security may result in civil or criminal liability. THE FASTMIND will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users, including You, who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the App, any THE FASTMIND website, any THE FASTMIND Account, including Your THE FASTMIND Account, if any, or any activity being conducted by THE FASTMIND or any users of the App. You further agree not to use or attempt to use any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the App, any THE FASTMIND website or THE FASTMIND Account other than any search engine and search agents available from THE FASTMIND, and other than generally available third party web browsers (e.g., Firefox, Safari, or Microsoft Explorer).
- Liquidated Damages.
In the event You (1) breach or violate any of THE FASTMIND’s restrictions on the use of the App, any THE FASTMIND Account, or any THE FASTMIND Content in any manner not permitted by the License granted herein, (2) acquire or download any content, data, text or images from an THE FASTMIND website, any App Store, or any THE FASTMIND Account without authorization under this Agreement or without THE FASTMIND’s express written permission, or (3) remove any intellectual property notices from the App, or any content accessible or displayed on the App, or through any THE FASTMIND Account without THE FASTMIND’s express written approval, You agree that THE FASTMIND’s damages in the event of such unauthorized conduct by You will be difficult to quantify. Therefore, in the event of such a breach, and in addition to Your obligation to immediately commence commercially reasonable efforts to cure any breach, You shall pay THE FASTMIND as liquidated damages, and not as penalty, the amount of $5,000.00 per occurrence, which liquidated damages shall be in addition to, and not in lieu of, any equitable relief to which THE FASTMIND may be entitled by reason of You breach of this Agreement.
- Order Acceptance.
There may be certain of Your orders or requests for THE FASTMIND Content or other THE FASTMIND services or products through the App or Your THE FASTMIND Account, if any, that THE FASTMIND or an App Store is unable to accept or fulfill, and must cancel or decline. THE FASTMIND or any App Store reserves the right, at its sole discretion, to refuse or cancel any order or request for any reason. For Your convenience, You will not be charged until Your payment method is authorized, and Your order information is verified for accuracy. Among the circumstances that may result in Your order being cancelled include inaccuracies or errors in pricing information, or problems identified by THE FASTMIND’s credit monitoring and fraud avoidance measures. THE FASTMIND or any App Store may also require additional verifications or information before accepting any order. THE FASTMIND will contact You if all or any portion of Your order placed with THE FASTMIND is canceled or if additional information is required to accept Your order. If Your order is canceled by THE FASTMIND after Your payment has been received, THE FASTMIND will issue a credit to Your THE FASTMIND Account, if any, in the amount of the charge. Any refunds or credits for products or services order through an App Store shall be governed by the App Store’s terms and conditions.
- Pricing Information.
While THE FASTMIND strives to provide accurate information about the fees and charges for any THE FASTMIND provided functionality available through the App or any THE FASTMIND Account. Nevertheless, pricing information mistakes or typographical errors may occur. THE FASTMIND cannot confirm the price of any THE FASTMIND provided products, services or Content until after You place an order with THE FASTMIND. In the event that a THE FASTMIND product or service is listed on the App, at any THE FASTMIND Account, or at any App Store, at an incorrect price or with incorrect information due to an error in pricing or product information, THE FASTMIND or the App Store shall have the right, at its sole discretion, to refuse or cancel any orders placed for that THE FASTMIND product, service, or Content. In the event that Your order for THE FASTMIND products or services is mispriced, THE FASTMIND may, at its discretion, either contact You for instructions or cancel Your order and notify You of such cancellation. THE FASTMIND strives to provide You with accurate THE FASTMIND pricing information; however, THE FASTMIND’s price information and the availability of THE FASTMIND products, services, and Content are subject to change without notice.
- Virtual Goods or Virtual Money.
- The App may include virtual currencies such as coins, gold coins and points (“Virtual Money”) or items or services for use with the App (“Virtual Goods”). You can buy Virtual Money from THE FASTMIND for real money if You are at least 18 years old. If You are over 18 years old Yu may also be able to buy Virtual Goods for real money and/or other credits. You agree that Virtual Money and Virtual Goods can never be exchanged for real money, real goods or real services from THE FASTMIND or anyone else. You also agree that You will only obtain Virtual Money and/or Virtual Goods from THE FASTMIND, and not from any third party.
- You do not own Virtual Goods or Virtual Money but instead You purchase a limited personal revocable license to use them. Any balance of Virtual Goods or Virtual Money does not reflect any stored value.
- You agree that all sales by THE FASTMIND to you of Virtual Money and Virtual Goods are final and that THE FASTMIND will not refund any transaction once it has been made. If You live in the European Union You have certain rights to withdraw from distance purchases. Please note, however, note that when You purchase a license to use Virtual Goods or Virtual Money from THE FASTMIND, the performance of THE FASTMIND’s services begins promptly once Your purchase is complete and therefore Your right of withdrawal is lost at this point.
- THE FASTMIND reserves the right to control, regulate, change or remove any Virtual Money or Virtual Goods without any liability to You.
- If THE FASTMIND suspends or terminates Your THE FASTMIND account, if any, You will lose any Virtual Money and Virtual Goods that You may have and THE FASTMIND will not compensate You for this loss or make any refund to You.
- Advertising on the THE FASTMIND Website and Your THE FASTMIND Account.
THE FASTMIND DOES NOT MAKE ANY GUARANTEES, WARRANTIES OR REPRESENTATIONS REGARDING THE PRODUCTS, SERVICES, OR SKILLS OF ANY ENTITIES THAT ARE ADVERTISED ON, OR LINKED TO OR FROM, THE APP OR ANY THE FASTMIND ACCOUNT, OR THE QUALITY OF THE PRODUCTS OR SERVICES THAT YOU MAY PURCHASE OR ACQUIRE FROM SUCH ENTITIES. IF YOU PURCHASE SUCH PRODUCTS OR SERVICES, OR ENTER INTO A BUSINESS RELATIONSHIP WITH THE PROVIDERS OR SUCH PRODUCTS OR SERVICES, YOU DO SO AT YOUR SOLE DISCRETION AND RISK. THE FASTMIND DOES NOT GUARANTEE OR WARRANT THE PERFORMANCE OR THE OUTCOME OR QUALITY OF THE PRODUCTS OR SERVICES PROVIDED BY ANY ENTITY OTHER THAN THE FASTMIND. SHOULD YOU HAVE A DISPUTE WITH A THIRD PARTY ADVERTISER, YOU MUST ADDRESS THE DISPUTE WITH THAT ADVERTISER DIRECTLY, AND YOU HEREBY AGREE TO RELEASE THE FASTMIND, ITS EMPLOYEES AND AGENTS FROM ANY AND ALL DAMAGES OR CLAIMS, INCLUDING CONSEQUENTIAL AND INCIDENTAL DAMAGES OF EVERY KIND OR NATURE, SUSPECTED AND UNSUSPECTED, KNOWN AND UNKNOWN, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES AND YOUR DEALINGS WITH ANY THIRD PARTY ADVERTISER ON THE APP OR ANY THE FASTMIND ACCOUNT.
- Intellectual Property Protection.
The information displayed on the App or any THE FASTMIND Account, or in any THE FASTMIND Content, including, without limitation, text, artwork, graphics, logos, button The FastMindns, images, audio clips, digital downloads, prices, product and service descriptions, and data compilations, is the property of THE FASTMIND, any third party from whom THE FASTMIND acquires products or services for resale, or other THE FASTMIND licensors. Such material or works are protected by U.S. and international trademark, copyright, and other intellectual property laws. You shall not copy, distribute, alter, display, perform, publish, or create derivative works from such materials, other than as permitted in this Agreement. Systematic retrieval of data or other information from the App or any THE FASTMIND Account, or any other THE FASTMIND service to prepare any collection, compilation, database, or directory is strictly prohibited.
The acronym “The FastMind”, the App, domain at which any THE FASTMIND website is located, and any other THE FASTMIND graphics, logos, designs, page headers, button The FastMindns, scripts and service names are trademarks or trade dress of THE FASTMIND. THE FASTMIND’s trademarks and trade dress may not be used, including as part of trademarks or as part of domain names, in connection with any other product or service in any manner that is likely to cause consumer confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of THE FASTMIND. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of THE FASTMIND or any THE FASTMIND affiliates without THE FASTMIND’s express written consent. You may not use any meta tags or any other “hidden text” utilizing THE FASTMIND’s name or trademarks without the express written consent of THE FASTMIND.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER THE FASTMIND NOR ANY THIRD PARTY HAS CONFERRED UPON YOU BY IMPLICATION, ESTOPPEL, OR OTHERWISE, ANY LICENSE OR RIGHT UNDER ANY PATENT, TRADEMARK, COPYRIGHT, OR OTHER PROPRIETARY RIGHTS TO USE THE APP OR YOUR THE FASTMIND ACCOUNT. NO OWNERSHIP RIGHTS ARE OR WILL BE ASSIGNED TO YOU BY REASON OF YOUR ACCEPTANCE OF THIS AGREEMENT.
- User Submissions.
By posting messages, uploading files (including graphics), inputting data, submitting any feedback or suggestions, or engaging in any other form of communication with or through the App or any THE FASTMIND Account, You represent and warrant that You own or otherwise control the rights necessary to do so and to grant THE FASTMIND the license set forth above. You will defend, indemnify, and hold THE FASTMIND and its agents, employees, officers, directors, subsidiaries, affiliates, parents, and partners harmless from any losses, expenses, judgments, fines or penalties, including reasonable attorneys fees and litigation costs and expenses, based upon claims asserted by a third party alleging facts that if true would constitute a breach by You of any of the foregoing representations or warranties.
You are prohibited from posting on or through the App or any THE FASTMIND Account any “Prohibited Submissions”, which shall include, but not be limited to, Submissions that are deemed in THE FASTMIND’s sole discretion to be patently offensive or promote racism, bigotry, hatred or physical harm of any kind against any group or individual; harass or advocate harassment of another person; exploit people in a sexual or violent manner; contain violence or offensive subject matter or contain a link to an adult website; solicit personal information from anyone under the age of eighteen (18); promote information that You know is false or misleading or promote illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; promote an illegal or unauthorized copy of another person’s copyrighted work; involve the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”; further or promote any criminal activity or enterprise or provide instructional information about illegal activities, violate someone’s privacy, or provide or creating computer viruses; solicit passwords or personal identifying information for commercial or unlawful purposes from other users; or include a photograph of another person that You have posted without that person’s consent. THE FASTMIND reserves the right to investigate and take appropriate legal action against anyone who, in THE FASTMIND’s sole discretion, violates this provision, including without limitation, removing the offending communication or Submission from the App, any THE FASTMIND website or any THE FASTMIND Account, or any other web site hosted or maintained by THE FASTMIND, and terminating the use of App by, or the Accounts of, such violators.
THE FASTMIND DOES NOT ASSUME ANY RESPONSIBILITY FOR AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR ANY OF YOUR SUBMISSIONS OR THE SUBMISSIONS OF ANY OTHER REGISTERED USERS THAT APPEAR ON OR THROUGH THE APP OR ANY THE FASTMIND ACCOUNT.
THE FASTMIND DOES NOT ASSUME ANY RESPONSIBILITY FOR MONITORING YOUR SUBMISSIONS, AND, IF AT ANY TIME THE FASTMIND CHOOSES, IN ITS SOLE DISCRETION, TO MONITOR SUCH SUBMISSIONS, THE FASTMIND NONETHELESS DOES NOT ASSUME ANY RESPONSIBILITY FOR THE SUBMISSIONS, ANY OBLIGATION TO MODIFY OR REMOVE ANY INAPPROPRIATE OR INACCURATE SUBMISSIONS, OR ANY RESPONSIBILITY FOR YOUR CONDUCT IN SUBMITTING ANY SUBMISSION.
FURTHERMORE, THE FASTMIND DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE ABILITY OF ANY PERSON TO RELY UPON ANY SUBMISSIONS SUBMITTED BY ANY USERS OF THE APP, OR ANY SUBMISSIONS THAT YOU MAY POST TO YOUR THE FASTMIND ACCOUNT, IF ANY, OR TO ANY OTHER SITE.
- Disclaimer of Warranties.
THE FASTMIND uses reasonable efforts to provide accurate, complete, and current THE FASTMIND Content through the App or on any THE FASTMIND Account. Nevertheless, THE FASTMIND does not guarantee or warrant that the THE FASTMIND Content therein is accurate, complete, timely, or free of technical or typographical errors. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE INFORMATION ON THE APP, IN ANY THE FASTMIND CONTENT, OR ANY THE FASTMIND ACCOUNT IS AT YOUR SOLE RISK. THE APP AND ANY THE FASTMIND CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE FASTMIND EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE FASTMIND DOES NOT MAKE ANY WARRANTY THAT THE APP OR ANY THE FASTMIND CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ACCESS TO THE APP, ANY THE FASTMIND ACCOUNT, AND ANY THE FASTMIND CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE, VIRUS-FREE OR ERROR FREE. EXCEPT AS OTHERWISE SEPARATELY EXTENDED TO YOU AT THE TIME YOU RECEIVE ANY THE FASTMIND PRODUCTS, SERVICES, OR CONTENT PROVIDED TO YOU THROUGH THE APP OR ANY THE FASTMIND ACCOUNT, THE FASTMIND DOES NOT MAKE ANY WARRANTY CONCERNING THE INFORMATION AND RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APP, OR THE FASTMIND CONTENT PROVIDED ON OR THROUGH THE APP OR ANY THE FASTMIND ACCOUNT, OR CONCERNING THE ACCURACY OR RELIABILITY OF ANY INFORMATION DISPLAYED THEREON. THE FASTMIND DOES NOT MAKE ANY WARRANTY REGARDING ANY INFORMATION OBTAINED FROM ANY HYPERLINKED THIRD PARTY SITE, INCLUDING ANY ADVERTISER’S SITE. THE FASTMIND DOES NOT MAKE ANY WARRANTY REGARDING THE RELATIONSHIPS BETWEEN ANY ADVERTISER ON THE APP OR ANY THE FASTMIND ACCOUNT AND OTHER USERS OF THE APP OR AN THE FASTMIND ACCOUNT. INFORMATION OBTAINED BY YOU FROM THE APP OR THROUGH YOUR THE FASTMIND ACCOUNT, IF ANY, SHALL NOT CREATE ANY WARRANTY NOT EXPRESSLY OR IMPLIEDLY MADE HEREIN TO THE EXENT PERMITED BY APPLICABLE LAW.
- Sales Final; Limitation of Liability.
YOU AGREE THAT ONCE YOU HAVE PAID FOR ANY THE FASTMIND CONTENT OR ANY OTHER THE FASTMIND SUPPLIED PRODUCTS OR SERVICES, ALL TRANSACTION ARE FINAL AND YOU ARE NOT ENTITLED TO A REFUND FOR ANY REASON. YOU ALSO AGREE THAT NEITHER THE FASTMIND NOR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING ANY THE FASTMIND PROVIDED PRODUCTS, SERVICES OR CONTENT TO YOU THROUGH THE APP OR ANY THE FASTMIND ACCOUNT SHALL BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OR ANY DAMAGES WHATSOEVER ARISING OUT OF YOUR ACCESS, USE OR INABILITY TO USE THE APP, THE THE FASTMIND PROVIDED PRODUCTS OR SERVICES, ANY THE FASTMIND CONTENT, ANY THE FASTMIND ACCOUNT, OR ANY OTHER HYPERLINKED WEBSITE OR ANY ERRORS OR OMISSIONS IN THE THE FASTMIND PROVIDED PRODUCTS OR SERVICES, OR THE FASTMIND CONTENT, ANY PERSON’S RELIANCE ON ANY INFORMATION OR THE FASTMIND PRODUCTS, SERVICS OR CONTENT PROVIDED THROUGH THE APP OR ANY THE FASTMIND ACCOUNT, WHETHER OR NOT THE INFORMATION IS CORRECT, CURRENT, OR COMPLETE, OR THE CONSEQUENCES OF ANY ACTION YOU OR ANY OTHER PERSON TAKE OR FAIL TO TAKE BASED ON THE FASTMIND PRODUCTS, SERVICES, OR THE FASTMIND CONTENT PROVIDED BY OR AS A RESULT OF YOUR USE OF THE APP OR ANY THE FASTMIND ACCOUNT.
YOU SPECIFICALLY AGREE THAT THE FASTMIND IS NOT LIABLE FOR ANY CONDUCT BY YOU WHILE USING THE APP, ANY THE FASTMIND CONTENT, OR ANY THE FASTMIND ACCOUNT. THE FASTMIND IS ALSO NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, OR FAILURE OF ANY EMAIL DUE TO TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON THE APP OR YOUR THE FASTMIND ACCOUNT, INCLUDING ANY INJURY OR DAMAGE TO ANY YOUR, OR ANY OTHER PERSON’S COMPUTER RELATED TO OR RESULTING FROM USE OF THE APP OR ANY THE FASTMIND ACCOUNT.
IN NO EVENT SHALL THE FASTMIND, BE LIABLE FOR ANY DAMAGES, INCLUDING ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM YOUR USE OR THE INABILITY TO USE THE APP, ANY THE FASTMIND CONTENT, ANY THE FASTMIND ACCOUNT, ANY INFORMATION ACCESSIBLE ON THE APP, ANY THE FASTMIND WEBSITE, OR ANY THE FASTMIND ACCOUNT, FROM ANY MESSAGES RECEIVED THROUGH THE APP OR ANY THE FASTMIND ACCOUNT, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLE PROPERTY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE FASTMIND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
In addition to your duties set forth in Section 9 above, You agree to defend, indemnify and hold harmless THE FASTMIND, or any of its employees, officers, directors, subsidiaries, parents, affiliates, or agents (the “Indemnified Parties”) from any losses, expenses, damages, judgments, or penalties, including reasonable attorneys fees and litigation expenses incurred at all levels of litigation, whether at trial or on appeal, arising from any allegations by a third party (a “Claim”) that, if proven to be true, would constitute a breach of You representations, warranties or other obligations under this Agreement. A Claim subject to this Section 12 shall include any allegations made by a third party or a governmental agency against an Indemnified Party arising from Your use of the App or any THE FASTMIND Account, or any THE FASTMIND Content. In the event of any Claim, the Indemnified Party shall provide You with prompt written notice of such a Claim, and will cooperate with You on reasonable terms and conditions in Your defense of any such Claim. You shall have the right to select legal counsel to defend any Claim, provided that any Indemnified Party shall have the right to engage independent legal counsel at its expense solely for the purpose of monitoring the progress of the defense or settlement of any Claim. You shall have the right to settle or compromise any Claim, provided that the Indemnified Parties shall have the right to consent to any such settlement or compromise that will materially diminish the Indemnified Parties’ rights under this Agreement, require the Indemnified Parties to perform any affirmative act, or pay any monies to any person or entity, which consent the Indemnified Parties shall not unreasonably withhold or delay. This indemnification obligation shall survive any termination of Your THE FASTMIND Account, if any, or Your right to use the App.
- Termination of Your Access to the App or Any THE FASTMIND Account.
You understand and agree that THE FASTMIND, in its sole discretion, may terminate Your right to use the App and Your THE FASTMIND Account, if any, delete any content stored in any THE FASTMIND Account, direct You to cease using the App or any THE FASTMIND Account, and discontinue or restrict Your access to the App or any THE FASTMIND Account, all without notice to You and for any reason. You agree that THE FASTMIND shall not be liable to You or to any third party for any modification, suspension, or discontinuance of the App or any THE FASTMIND Account, or any parts thereof.
- Modifications to the THE FASTMIND Website or Any THE FASTMIND Account.
You understand and agree that THE FASTMIND may discontinue or change the App or Your THE FASTMIND Account, ;if any, at any time, without notice to You. THE FASTMIND makes no commitment to update the functionality of the App or the information maintained or accessible to You in any THE FASTMIND Account. THE FASTMIND may, as it deems necessary and appropriate, make revisions, upgrades and modifications to the App or any THE FASTMIND Account from time to time to maintain the general performance and functionality of the App or any THE FASTMIND Account at no additional charge to You.
- Assignment. This Agreement shall bind and inure to the benefit of THE FASTMIND’s successors, assigns and licensees. THE FASTMIND shall have the right to assign or otherwise transfer its rights or obligations under this Agreement whether by contract, merger, sale of all or substantially all of THE FASTMIND’s assets, or operation of law without Your consent, or notice to You. You shall not have the right to assign, by contract, operation of law or otherwise, this Agreement or any of the rights, interests, or obligations hereunder, without THE FASTMIND’s express written permission, which THE FASTMIND may withhold in its absolute discretion. Any attempted assignment of this Agreement in violation of this Section shall be null and void and not have any legal force or effect.
- Severability. In the event that any provision of this Agreement is, becomes, or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, this Agreement shall continue in full force and effect without such provision.
- Waiver. The failure of THE FASTMIND at any time or times to require performance of any provision hereof shall in no manner affect the right of THE FASTMIND at a later time to enforce the same.
- Arbitration. Any claim or controversy relating to this Agreement and the conduct, activities and services of THE FASTMIND, except a claim by THE FASTMIND against you for the payment of any fee, shall be resolved informally by the parties or by binding arbitration conducted in accordance with the rules of the American Arbitration Association (the “AAA”), before one arbitrator. Any claim relating to the use of the THE FASTMIND Website, Your THE FASTMIND Account, this Agreement, and any Content displayed on such site, shall be governed by the internal substantive laws of the State of Florida, without regard to its conflicts of laws rules. The parties also acknowledge that venue for any arbitration or litigation relating to this Agreement and the conduct, activities and services of THE FASTMIND, will be within Miami, Florida. The arbitrator shall hear motions to strike, motions to dismiss and/or for summary judgment, and enforce full discovery rights in accordance with the provisions of Florida Rules of Civil Procedure and Local Rules of any Florida state court of competent jurisdiction sitting in Miami, Florida. The parties may commence discovery upon the selection of the arbitrator. Discovery shall be permitted for a period of not less than 120 days and shall be concluded not less than 60 days prior to the final hearing. Within 30 days of the hearing, the arbitrator must give a written award setting forth the material facts and legal basis for the award. The arbitration award shall be final. Judgment upon the award may be confirmed by any court having proper jurisdiction. IF YOU FAIL TO INITIATE ARBITRATION WITH THE AAA WITHIN ONE YEAR OF THE DATE OF THIS AGREEMENT, YOU SHALL BE FOREVER BARRED FROM INITIATING ARBITRATION PROCEEDINGS AGAINST THE FASTMIND. In such an event, it shall be considered conclusive evidence that You are satisfied with THE FASTMIND’s performance relating to the Agreement and the conduct, activities and services of THE FASTMIND, and You agree to release THE FASTMIND from any and all liability relating to the Agreement, and the conduct, activities and services of THE FASTMIND.
- Jury Waiver. Each party waives the right to a trial by jury in any dispute relating to the use of the APP, Your THE FASTMIND Account, this Agreement, and any Content displayed on the APP OR IN OR ON YOUR ACCOUNT, and agree to take any and all action necessary or appropriate to effect such waiver.
- Access to the App, and Attorneys’ Fees. You acknowledge that THE FASTMIND does not have any responsibility for any access to the App or any THE FASTMIND Account from countries or territories where such access may be illegal or otherwise prohibited. When You access or use the App or any THE FASTMIND Account You are responsible for compliance with applicable local laws. You further agree that in the event of any litigation (as limited in paragraph D above), or any arbitration to interpret or enforce a Party’s rights under this Agreement, the judge or arbitrator, as the case may be, shall have the right and duty, in addition to awarding any relief deemed appropriate in the circumstances, to award the prevailing party its reasonable attorneys fees, costs and expenses, incurred in prosecuting or defending any court or arbitration proceeding, on appeal, or in any proceeding to enforce any judgment or arbitration award.
- Amendments. Further to Section 2 of this Agreement, You agree that THE FASTMIND may amend or modify this Agreement or impose new conditions at any time by updating this Agreement and providing notice to You of such amendments or modifications on the App or through Your THE FASTMIND Account, if any, or upon notice from THE FASTMIND to You delivered by e-mail. Your use of the App or any THE FASTMIND Account after such updating or notice to You shall constitute Your acceptance of such amendments, modifications, or new conditions. If You do not want to be bound by an amendment, or subsequent version of this Agreement, You must terminate Your use of the App and Your THE FASTMIND Account, if any, and refrain from using the App or any THE FASTMIND Account after the date of Your termination. No other amendments will be valid unless they are in a paper writing signed by THE FASTMIND and by You.
The following provisions of this Agreement shall survive its termination for any reason: Sections 1, 2, 3E, 4, 5C, 5D, 5E, 7, 8, 9, 10, 11, 12 and 16.
- Descriptive Headings.
The headings of the several sections of this Agreement are intended for convenience of reference only and are not intended to be a part of or affect the meaning or interpretation of this Agreement.