Terms of use agreement

1.1Overview

ToSelf is a journaling app with analytics powered by artificial intelligence (“AI”). The Services are to provide you certain analytics in connection with your journal entries. You have the right to access the Services solely for your personal, non-business, informational purposes, subject to the terms of this Agreement.

1.2App License

Subject to your compliance with this Agreement, ToSelf grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a Device (as defined below) that you own or control and to run such copy of the App solely for your own personal purposes.

1.3Supplemental Terms

Your use of, and participation in, certain features and functionality of the Services may be subject to additional terms (“Supplemental Terms”). Such Supplemental Terms will either be set forth in the applicable supplemental Services or will be presented to you for your acceptance when you sign up to use the supplemental Services. If this Agreement is inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such supplemental Services.

1.4Updates

You understand that the Services are evolving. As a result, ToSelf may require you to install updates to the App that you have installed on the devices through which you access or use the Services (“Device”). You acknowledge and agree that ToSelf may update the Services with or without notifying you. You may need to update third-party software from time to time in order to continue to use the Services. Any future release, update or other addition to the Services shall be subject to this Agreement.

1.5ToSelf Communications

You may have the opportunity to provide us with your e-mail address when you register an Account, visit the Website, or otherwise interact with the Services. By providing your email address to us, you consent to receiving email communications from ToSelf. Communications from us may include but are not limited to: communications related to one of our offerings, communications related to product or industry developments in our newsletter, or communications to respond to your inquiries. If you opt-in to receiving our marketing or promotional communications by email, you will have the ability to opt out of receiving such communications by following the instructions in this section. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS AS A CONDITION OF USING THE WEBSITE OR OUR SERVICES. IF YOU WISH TO OPT OUT OF RECEIVING PROMOTIONAL EMAIL COMMUNICATIONS FROM US, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.

1.6Account Registration

Registering your account. In order to access ToSelf, you are required to register an account on the Services (“Account”) via the Apple App Store. If you are registering an Account on behalf of a user, you acknowledge and agree that you will secure and maintain all authorizations necessary for purposes of registering an Account on behalf of such user, and will only elect such preferences as are expressly agreed and authorized by any such user.

Registration data. In registering an Account on the Services, you shall provide true, accurate, current, and complete information about yourself (the “Registration Data”).

Connecting via third-party services. By connecting to the Service via a third-party service (e.g. Sign-in With Apple), you give us permission to access and use your information from that service, as permitted by that service, and to store your log-in credentials and/or access tokens for that service.

Your account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of ToSelf. Furthermore, you are responsible for all activities that occur under your Account. You may not share your Account with anyone, and you agree to notify ToSelf immediately of any breach of security. If you provide any Account information that is untrue, inaccurate, incomplete or not current, or ToSelf has reasonable grounds to suspect that any information you provide is untrue, inaccurate, incomplete or not current, ToSelf has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account or use the Services if you have been previously removed by ToSelf, or if you have been previously banned from any of the Services.

Usage restrictions. You agree not to:

1. license, sell, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion thereof;
2. frame or utilize framing techniques to enclose any trademark or logo of ToSelf, or any other portion of the Services (including images, text, page layout or form);
3. use any metatags or other “hidden text” using ToSelf’s name or trademarks;
4. modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law;
5. except as expressly stated herein, copy, reproduce, distribute, republish, download, display, post or transmit any part of the Services in any form or by any means;
6. remove or destroy any copyright notices or other proprietary markings contained on or in the Services;
7. interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement;
8. provide false, misleading, or inaccurate Account information to ToSelf;
9. attempt to probe, scan, or test the vulnerability of the Services or any associated system or network;
10. intentionally or unintentionally violate any applicable law;
11. attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means;
12. use or attempt to use ToSelf for the purpose of obtaining healthcare advice, including emergency medical, psychological, or therapeutic care;
13. request or offer to perform a request that is illegal or violates any of the terms set forth herein; or
14. attempt to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Website, using manual or automated software or other means to access, “scrape,” “crawl,” or “spider” any pages that are part of the Website, introducing viruses, worms, or similar harmful code into the Website, or interfering or attempting to interfere with use of the Website by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Website.

Any future release, update or other addition to the Services shall be subject to this Agreement. ToSelf, its suppliers and service providers reserve all rights not granted in this Agreement. Any unauthorized use of the Services terminates the licenses granted by ToSelf pursuant to this Agreement.

2.1User Responsibility for Content

You acknowledge that all content on the Services is the sole responsibility of the party from whom such content originated. This means that you, and not ToSelf, are entirely responsible for all statements you make or say or information you otherwise submit or make available (“Make Available”) to ToSelf or otherwise to or through the Services, including Your Contributions (as defined below) (collectively, “Your Content”).

2.2Use of AI

Our Services utilize certain publicly available artificial intelligence platforms, algorithms and models (“Models”) to generate certain analyses (collectively, “ToSelf Contributions”) based on your journal entries and other inputs that are made available to ToSelf (“Your Contributions”). You acknowledge that certain ToSelf Contributions are based on Your Contributions, as well as Models and information, and, that ToSelf has no control over any such Your Contributions, Models or information. Accordingly, all ToSelf Contributions are provided “as is” and with “all faults”, and ToSelf makes no representations or warranties of any kind or nature with respect to any ToSelf Contributions, including any warranties of accuracy, completeness, truthfulness, timeliness or suitability. You are solely responsible for your use of or reliance on any such ToSelf Contributions accessed through ToSelf, and you assume all risks associated with your use of or reliance on ToSelf Contributions. Furthermore, ToSelf will have no liability for the unavailability of any Models, or any third party’s decision to discontinue, suspend or terminate any third-party provided Models. BECAUSE TOSELF UTILIZES ARTIFICIAL INTELLIGENCE TO PROVIDE ANALYTICS, TOSELF MAY PROVIDE INFORMATION THAT IS INACCURATE OR INAPPROPRIATE. YOU AGREE THAT TOSELF WILL NOT BE HELD LIABLE TO YOU OR ANY THIRD PARTY FOR PROVIDING SUCH INACCURATE OR INAPPROPRIATE INFORMATION TO YOU.

2.3No Obligation to Pre-Screen Content

1. As described in Section 2.2, ToSelf processes Your Content through third-party artificial intelligence Models, and you authorize us to access and use certain information from third-party services. Your Content may give rise to violations of such third parties’ terms of use (the “Violations”). ToSelf may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Services and/or content available thereon, including Your Content, at any time, to ensure that Violations do not occur.
2. ToSelf reserves the right to: (i) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such content violates this Agreement, gives rise to a Violation, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for ToSelf; (ii) take appropriate legal action, including without limitation, referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Services or if ToSelf otherwise believes that criminal activity has occurred; and/or (iii) terminate or suspend your access to ToSelf or any other part of the Services for any or no reason, including without limitation, any violation of this Agreement. Upon determination of any possible violations by you of any provision of this Agreement, ToSelf, may, at its sole discretion immediately terminate your license to use the Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
3. If ToSelf believes that criminal activity has occurred, ToSelf reserves the right to, except to the extent prohibited by applicable law, disclose any information or materials on or in the Services, including Your Content, in ToSelf’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request, (ii) enforce this Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of ToSelf, its users or the public, and all enforcement or other government officials, as ToSelf in its sole discretion believes to be necessary or appropriate.

2.4Necessary Equipment and Software

You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with ToSelf. You are solely responsible for any fees, including Internet connection or mobile or landline fees, that you incur when accessing the Services.

2.5Storage

ToSelf has no obligation to store any of Your Content that you Make Available on the Services.

3.1Services

Except with respect to Your Content, you agree that ToSelf and its suppliers own all rights, title and interest in the Services, and all intellectual property underlying or used in connection with the Services. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any of the Services. Except as expressly stated in this Agreement, you are not granted any intellectual property rights in or to the Services by implication, estoppel, or other legal theory, and all rights in and to the Services not expressly granted in this Agreement are hereby reserved and retained by ToSelf.

3.2Trademarks

ToSelf and all related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of ToSelf and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.

3.3License to Your Content

You grant ToSelf a fully paid, perpetual, irrevocable, worldwide, royalty-free, non-exclusive, transferable and sublicensable license to store and use Your Content (in whole or in part, including as audio recordings), for the purposes of operating, providing, and improving the Services, and on an identifiable and/or de-identified or aggregated basis, to improve the Services.

3.4Feedback

If you elect to provide suggestions or feedback, you hereby grant to ToSelf a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by you that relates to the Services. ToSelf will not identify you as the source of any such feedback.

THE SERVICES ARE STRICTLY DESIGNED TO FACILITATE DYNAMIC JOURNALING AND ANALYTICS IN CONNECTION THEREWITH. As a condition of use, you agree not to Make Available any content or information or take any action using the Services that: (a) may constitute, contribute to, depict, or encourage a crime, illegal or terrorist activity, or a violation or infringement of any third party’s rights; (b) is unlawful, harmful, threatening, abusive, harassing, inflammatory, defamatory, libelous, discriminatory, deceptive, fraudulent, invasive of another’s privacy, tortious, offensive, vulgar, hateful, or is racially, ethnically, or otherwise objectionable (in our sole discretion); (c) contains adult content; (d) may create a risk of, glorify, encourage, or threaten violence, harm, physical or mental injury, emotional distress, death, disability, disfigurement, self-harm, or any other loss or damage to you or any other person or to any animal or to any property; (e) exploits political agendas or “hot button” issues for commercial use, or that contains hate speech based upon the race, sex, national origin, religious affiliation, marital status, sexual orientation, gender identity, or language of an individual or group; (f) you do not have the right to Make Available or to take under any law under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); or (g) harms minors in any way, or solicits or otherwise attempts to gain any information from a minor.

5.1Third-Party Payments Provider

ToSelf uses the Apple App Store as its third-party provider for subscription and payment services (“Third-Party Payments Provider”). All purchases made through the App, including Subscriptions, are processed exclusively through the Apple App Store using the payment method affiliated with your Apple ID, and are subject to Apple’s terms and policies. You agree to be bound by Apple’s Licensed Application End User License Agreement (currently accessible at https://www.apple.com/legal/internet-services/itunes/dev/stdeula/) and Apple’s Privacy Policy (currently accessible at https://www.apple.com/legal/privacy/), and hereby consent and authorize ToSelf and Apple to share any information necessary to complete your transactions (e.g. the purchase of a Subscription). You acknowledge that all payment processing, including billing, charging, and refund processing, is handled by Apple, and that ToSelf has no control over and is not responsible for Apple’s payment processing practices.

5.2Payment

Should you make a purchase through the Services, you shall pay all fees or charges (“Fees”) in accordance with the fees, charges and billing terms in effect at the time a Fee is due and payable, as listed in the Services and/or accessible through your Account. By providing ToSelf and/or our Third-Party Payments Provider with your payment information, you agree that ToSelf and/or our Third-Party Payments Provider are authorized to immediately invoice you within your Account for all Fees due and payable to ToSelf hereunder and that no additional notice or consent is required. You shall immediately notify ToSelf of any change in your payment information to maintain its completeness and accuracy. ToSelf reserves the right at any time to change its prices and billing methods in its sole discretion. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to ToSelf and/or our Third-Party Payments Provider or our inability to collect payment constitutes your material breach of this Agreement. Except as set forth in this Agreement, all Fees for the Service are non-refundable.

5.3Subscriptions

If you purchase access to certain features and functionality of the Services on a time-limited basis (a “Subscription”), the Fee for such Subscription (“Service Subscription Fee”) will be billed at the start of the Subscription (“Subscription Service Commencement Date”) and at regular intervals (“Subscription Term”) in accordance with your elections at the time of purchase. ToSelf reserves the right to change the timing of our billing. ToSelf reserves the right to change the Subscription pricing at any time. If changes to the Subscription price occur that impact your Subscription, ToSelf will use commercially reasonable efforts to notify you, such as by sending an email to the email address associated with your Account. If you do not agree with such changes, you may cancel your Subscription.

5.4Automatic Renewal

If you elect to purchase a Subscription, your Subscription will continue and automatically renew at ToSelf’s then-current price for such Subscription until terminated in accordance with this Agreement. The frequency at which your Subscription renews (e.g., monthly) will be designated at the time at you sign up for the Subscription and may be modified by you via your Account settings. By subscribing, you authorize ToSelf and/or ToSelf’s Third-Party Payments Provider to charge the applicable payment method now, and again at the beginning of any subsequent Subscription Term. Upon renewal of your Subscription, if ToSelf does not receive payment, (i) you shall pay all amounts due on your Account upon demand and/or (ii) you agree that ToSelf may either terminate or suspend your Subscription and continue to attempt to charge your designated payment method until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new Subscription Term will begin as of the day payment was received).

5.5Cancelling Subscriptions

Please refer to the instructions provided, either in the App or via the Apple App Store, for instructions on how to cancel your Subscription. Your cancellation generally will take effect at the end of the billing cycle in which you cancel, and you will maintain access to your Subscription features until then.

5.6Effect of Cancellation

If you cancel your Subscription, you may use your Subscription until the end of your then-current Subscription term; your Subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Service Subscription Fee paid for the then-current Subscription Term. For the avoidance of doubt, if you have purchased a paid Subscription, upon termination or expiration of your paid Subscription term, you will still have access to the free version of the App (unless such access is otherwise revoked in accordance with the terms set forth herein).

5.7Refunds

Except as required by applicable law, all Fees and other amounts paid in connection with the Services (including without limitation any Service Subscription Fees, or other charges) are non-refundable, non-cancellable, and non-creditable, regardless of actual usage, termination, or dissatisfaction. By purchasing any Subscription or other Service from ToSelf, you acknowledge and agree that ToSelf has no obligation to provide any refunds or credits under any circumstances, including in connection with a cancellation, or termination of your Subscription. Any exception to this policy must be authorized in writing by ToSelf and will be granted in ToSelf’s sole and absolute discretion.

You agree to indemnify and hold ToSelf, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “ToSelf Party” and collectively, the “ToSelf Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content (including Your Contributions); (b) your use of, or inability to use, any of the Services; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any other users; or (e) your violation of any applicable laws, rules or regulations. ToSelf reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with ToSelf in asserting any available defenses. This provision does not require you to indemnify any of ToSelf Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Services provided hereunder. You agree that the provisions in this section will survive any termination of the Agreement and/or your access to the Services.

7.1As Is

YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, YOUR ACCESS TO INFORMATION ON THE WEBSITE AND YOUR USE OF THE APP, ARE AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TOSELF PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES. TOSELF PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) THAT DEFECTS WILL BE CORRECTED; (D) THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (E) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. TOSELF MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES. TOSELF PARTIES DO NOT (1) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION OR RESOURCES PROVIDED WITHIN, OR IN CONNECTION WITH, THE SERVICES, INCLUDING WITH RESPECT TO ANY OUTPUTS OR TOSELF CONTRIBUTIONS; OR (2) ADOPT, ENDORSE, OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY SUCH OUTPUTS OR TOSELF CONTRIBUTIONS, INCLUDING ANY INFORMATION OR RESOURCES PROVIDED AS PART OF ANY OUTPUTS OR TOSELF CONTRIBUTIONS. UNDER NO CIRCUMSTANCES WILL TOSELF PARTIES BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON SUCH INFORMATION OR RESOURCES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TOSELF OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

7.2Clinical Disclaimer

AS FURTHER DESCRIBED AND DISCLAIMED IN SECTION 1.1, TOSELF IS NOT A THERAPEUTIC, MEDICAL OR CLINICAL SERVICE AND TOSELF DOES NOT OFFER THERAPEUTIC OR MEDICAL ADVICE OR ENGAGE IN THE PRACTICE OF THERAPY OR MEDICINE. THE SERVICES, INCLUDING ANY TOSELF CONTRIBUTIONS, ARE FOR INFORMATIONAL OR ENTERTAINMENT PURPOSES ONLY, AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL, CLINICAL, OR MEDICAL ADVICE.

8.1Disclaimer of Certain Damages

YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL TOSELF PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT TOSELF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT ON ANY THEORY OF LIABILITY, RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; (E) THE USE OF ANY CONTENT, INFORMATION, OR OTHER MATERIAL ON THE SERVICES OR LINKED TO THROUGH THE SERVICES; OR (F) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A TOSELF PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A TOSELF PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A TOSELF PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

8.2Cap on Liability

TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, TOSELF PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) $100; OR (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A TOSELF PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A TOSELF PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A TOSELF PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

8.3Exclusion of Damages

CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

8.4Basis of the Bargain

THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TOSELF AND YOU.

9.1Term

The Agreement commences on the date when you accept it (as described in the preamble above) and remains in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.

9.2Termination of Services by ToSelf

If you have breached any provision of the Agreement, or if ToSelf is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), ToSelf has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in ToSelf’s sole discretion and that ToSelf shall not be liable to you or any third party for any termination of your use of the Services. Further, if this Agreement is terminated for any reason, then your access to and use of the Services, including the App, is automatically terminated.

9.3Termination by You

If you want to terminate this Agreement, you may do so by deleting your Account. Upon deletion of your Account, your Subscription will be cancelled as of the date of Account deletion and you will not be entitled to a refund of any Fees paid. If you delete your Account, all of Your Content will be permanently erased and cannot be recovered. For the avoidance of doubt, ToSelf reserves the right to retain any and all de-identified or aggregated data based upon, or derived from, any of the foregoing, including any of Your Content, and any resulting insights related thereto, which are owned and retained by ToSelf.

9.4Effect of Termination

Upon termination or expiration of this Agreement for any reason all licenses granted hereunder will immediately terminate. Your right to use the Services will automatically terminate immediately, and you understand that termination of the Services may involve deletion of Your Content associated therewith from our live databases. ToSelf will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, licenses to Your Content, warranty disclaimers, indemnification, governing law, venue, and limitation of liability.

Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with ToSelf and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

10.1Applicability of Arbitration Agreement

Subject to the terms of this Arbitration Agreement, you and ToSelf agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and ToSelf may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or ToSelf may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.

10.2Informal Dispute Resolution

There might be instances when a Dispute arises between you and ToSelf. If that occurs, ToSelf is committed to working with you to reach a reasonable resolution. You and ToSelf agree that good faith informal efforts to resolve Disputes can result in a prompt, low-cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and ToSelf therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to ToSelf that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to Support@toself.io. The Notice must include: (1) your name, telephone number, mailing address, e-mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e-mail address of your counsel, if any; and (3) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

10.3Waiver of Jury Trial

YOU AND TOSELF HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and ToSelf are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 10.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

10.4Waiver of Class and Other Non-Individualized Relief

YOU AND TOSELF AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 10.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 10.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and ToSelf agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or ToSelf from participating in a class-wide settlement of claims.

10.5Rules and Forum

This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and ToSelf agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e-mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless you and ToSelf otherwise agree, or the Batch Arbitration process discussed in Section 10.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.

You and ToSelf agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

10.6Arbitrator

The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 10.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.

10.7Authority of Arbitrator

The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 10.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 10.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 10.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 10.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 10.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

10.8Attorneys’ Fees and Costs

The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or ToSelf need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

10.9Batch Arbitration

To increase the efficiency of administration and resolution of arbitrations, you and ToSelf agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against ToSelf by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by ToSelf.

You and ToSelf agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

10.1030-Day Right to Opt Out

You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: ToSelf, Inc., 2193 Fillmore St, San Francisco, CA 94115 (with a copy via e-mail to Support@toself.io), within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

10.11Invalidity, Expiration

Except as provided in Section 10.4 (Waiver of Class and Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with ToSelf as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

10.12Modification

Notwithstanding any provision in this Agreement to the contrary, we agree that if ToSelf makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to ToSelf at Support@toself.io, your continued use of the Services, including the acceptance of products and services offered on the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. ToSelf will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.

11.1Third-Party App Access

With respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced App”), you shall only use the App Store Sourced App (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service, except that such App Store Sourced App may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function.

11.2Accessing and Downloading the App from the Apple App Store

The following applies to any App Store Sourced App accessed through or downloaded from the Apple App Store:

1. You acknowledge and agree that (i) this Agreement is concluded between you and ToSelf only, and not Apple, and (ii) ToSelf, not Apple, is solely responsible for the App Store Sourced App and content thereof. Your use of the App Store Sourced App must comply with the App Store Terms of Service.
2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced App.
3. In the event of any failure of the App Store Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced App. As between ToSelf and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of ToSelf.
4. You and ToSelf acknowledge that, as between ToSelf and Apple, Apple is not responsible for addressing any claims you have or of any third party relating to the App Store Sourced App or your possession and use of the App Store Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
5. You and ToSelf acknowledge that, in the event of any third-party claim that the App Store Sourced App or your possession and use of that App Store Sourced App infringes that third party’s intellectual property rights, as between ToSelf and Apple, ToSelf, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
6. You and ToSelf acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced App, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced App against you as a third-party beneficiary thereof.
7. Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced App.

12.1Modifications to the Agreement

ToSelf may modify the terms of this Agreement at any time in its sole discretion. When changes are made, ToSelf will make a new copy of the Agreement on the Website. We will also update the “Last Updated” date. Any changes will be effective immediately for new users and will be effective thirty (30) days after posting notice of such changes on the Website for existing users, provided that any material changes shall be effective for existing users upon thirty (30) days after posting notice of such changes on the Services. ToSelf may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you may stop using the Services and terminate this Agreement in accordance with Section 9.3. Otherwise, your continued use of the Services constitutes your acceptance of such change(s).

12.2Assignment

This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without ToSelf’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. ToSelf may assign, transfer or delegate any of its rights and obligations hereunder without your consent.

12.3Force Majeure

ToSelf shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

12.4Questions, Complaints, Claims

If you have any questions, complaints or claims with respect to the Services, please contact us at: Support@toself.io. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

12.5Governing Law; Venue

To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and ToSelf agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in California. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.

12.6Notice

Where ToSelf requires that you provide an e-mail address, you are responsible for providing ToSelf with your most current e-mail address. In the event that the last e-mail address you provided to ToSelf is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Agreement, ToSelf’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to ToSelf at the following: Support@toself.io. Such notice shall be deemed given when received by ToSelf by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.

12.7Waiver

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

12.8Severability

If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

12.9Entire Agreement

The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.