Terms of Service

TERMS OF USE

Effective as of May 31, 2024

Elemind Technologies Inc. (“Elemind” “we” “us” or “our”) has developed a unique wearable neurotechnology platform that uses proprietary algorithms and artificial intelligence to improve sleep health through noninvasive, proactive brainwave stimulation through the use of a comfortable, durable headband device in combination with the Elemind App.  The Elemind technology is best provided through a monthly Membership  to which these Terms of Use apply (the “Elemind Membership”). Without an active membership, functionality of the Elemind headband may be limited or removed .

THESE TERMS OF USE (“TERMS”) APPLY TO YOUR USE OF THE ELEMIND HEADBAND, THE ELEMIND MEMBERSHIP , THE ELEMIND APP AND THE ELEMIND WEBSITE (www.elemindtech.com and any successor website).  THESE TERMS ALSO APPLY TO ANY OTHER SERVICES PROVIDED BY ELEMIND WHICH YOU USE OR TO WHICH YOU SUBSCRIBE (COLLECTIVELY THE “SERVICES”).  YOU MAY NOT USE THE SERVICES UNLESS YOU AGREE TO AND COMPLY WITH THESE TERMS, WHICH CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND ELEMIND. 

YOUR CONTINUED USE OF THE SERVICES, INCLUDING THE CREATION OF AN ELEMIND MEMBERSHIP , CONSTITUTES YOUR AGREEMENT TO THESE TERMS.  IF YOU DO NOT AGREE TO THESE TERMS (OR LATER DECIDE YOU NO LONGER AGREE TO THESE TERMS), YOU MAY NOT USE THE SERVICES. 

Nature of the Services 

The Services (including the Elemind headband) are intended to be used solely for general wellness and are not intended to be used to diagnose, cure, prevent or treat any particular (or general) medical condition.  The Elemind headband is not a medical device.  Elemind makes no representation or warranty about the effectiveness of the Services. You may wish to seek the advice of your physician or health care provider before using the Services or the Elemind headband if you suffer from epilepsy or have other questions or concerns about sleep health. You should not change the use of any sleep-related prescription without first consulting with your physician.

Services  Requirements

The Services are offered and available to users who are 13 years of age or older and reside in Canada or the United States or any of associated territories and possessions. By using the Services, you represent and warrant that you are of legal age to form a binding contract with Elemind and meet all eligibility requirements to use the Services. If you do not meet all of these requirements, you must not access or use the Services.

The Services may only be used with a genuine Elemind headband manufactured, distributed, or sold by or on behalf of Elemind. The Services will not function properly, and you may not connect to the Services with any device that is not manufactured, distributed, or sold by or on behalf of Elemind.

Account; Account Security

To use the Services, you must create an account by providing us with a valid email address and agreeing to these Terms and our Privacy Statement. You can access your account information at any time through the Services. You must provide us with accurate and complete information and update that information as appropriate. If any information provided by you is untrue, inaccurate, not current or incomplete, Elemind may terminate your use of the Services.

You are responsible for maintaining the confidentiality of your account and for all activities which occur within your account and through your account credentials. You must notify Elemind immediately of any actual or suspected unauthorized access to or use of your account or any other breach of security. You must at all times secure your account from third party access from any device. 

You agree that all information you provide to register with the Services or through the use of the Services is governed by our Privacy Statement. Your continued use of the Services constitutes your consent to our processing, using, collecting or sharing your information as detailed in our Privacy Statement.

Grant of a Limited License

Subject to your complying with these Terms, Elemind grants you a personal, non-exclusive, non-assignable, non-transferable license (without the right to sublicense) to access and use the Services for your personal and non-commercial use only. You may not use the Services for any other purpose.  As a condition to the license granted herein, you will not (and will not permit any other party to): 

  1. modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services; 
  2. duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
  3. use, reproduce or remove any copyright, trademark, trade names, slogan, logos, images, Services marks or other proprietary notations displayed on or through Services;
  4. attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services;
  5. circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
  6. use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Services to monitor, extract, copy or collect information from or through the Services, or any manual process to do the same;
  7. introduce any viruses, trojan horses, worms, logic bombs or other material which are malicious or harmful;
  8. use the Services for any illegal, harassing, unethical, or disruptive purpose;
  9. violate any applicable law or regulation in connection with your use of the Services; or
  10. use the Services  in any way not expressly permitted by these Terms.

Data and Intellectual Property Ownership

All intellectual property rights, including copyrights, patents, trademarks, and trade secrets, contained within the Services or any of their content are owned by Elemind or its licensors. Other than the limited license granted herein, neither you nor any third party shall obtain any right, title or interest in or to such intellectual property rights by virtue of the use of the Services s, the headband or the Elemind App. Elemind reserves all rights not granted in this Agreement and specifically the exclusive right to create derivative works therefrom. 

Third Party Websites, Apps or Resources

The Services may provide links to other websites, apps or resources owned, offered, or controlled by third parties (“Third Party Sites”). These Third-Party Sites are provided for your convenience only and are not controlled, sponsored, or endorsed by Elemind. Elemind is not responsible for the information, advertising, products, resources or other material of any Third-Party Site, or any link contained in a Third-Party Site.  Elemind cannot and does not guaranty the continued availability of any Third-Party Site. Your use of any such Third-Party Site is entirely at your own risk and Elemind shall not have any liability to you or any other person or entity for your use or access to any such Third-Party Site. 

Nature of the Services 

As noted above, the Services  (including the Elemind headband) are designed to enhance general wellness and are not intended to be used to diagnose, cure, prevent or treat any medical condition.  The Elemind headband is not a medical device.  Elemind makes no representation or warranty about the effectiveness of the Services. You may wish to seek the advice of your physician or health care provider before using the Services or the Elemind headband if you have questions or concerns about sleep health. You should never disregard or delay seeking medical advice because of your use of the Services. You should not use the Services if you:

  • are under the age of 13 or cannot provide valid consent; 
  • have an active, implanted medical device that may be interfered with by the headband, its sound emissions or the Services ; 
  • have a skull defect (i.e., plate in the skull or previous reconstructive skull surgery) or any implant in the portion of the skull that would prevent the transmission of sound emitted by the headband; 
  • are deaf or have significant hearing loss (you must be able to hear the emissions) or
  • have epilepsy, a history of seizures, or are sensitive to pulsing noise.

You should always use the headband and the Services only as directed.  Do not use the headband over broken skin or when using the headband causes skin irritation. 

If you experience a medical emergency, stop using the headband and the Services and consult with a medical professional. We are not responsible for any health issues that arise from sleep programs, consultations, products, or events you learn about through the Services.

Alerts and Notifications

As part of your use of the Services, you may receive notifications, text messages, alerts, or emails, and you consent to receiving these types of communications while your Membership  is active.  You can opt out of any marketing related communications through your account settings or through “unsubscribe” links provided by Elemind. These communications may be subject to messaging or data fees from your wireless carrier or service provider and you are responsible for any such fees.

Notice of Infringement – DMCA Policy

If you (or anyone else) believes that any portion of the Services is infringing their copyright, they may submit a notification to Elemind’s copyright agent in accordance with the Digital Millennium Copyright Act (the “DMCA”). Any notice must include: (i) identification of the copyrighted work that is claimed to be infringed; (ii) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Services ; (iii) information for our copyright agent to contact you, such as an address, telephone number, and, if available, e-mail address; (iv) a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law; (v) a statement that the information provided is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and (vi) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.

If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by notating this in your written notice. If you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.

Notices of copyright infringement claims should be sent by mail to: Elemind Inc, attn:  Copyright Agent, Elemind Technologies, Inc, 45 Prospect St, Cambridge, MA, 02139 or by email to support@elemindtech.com. Elemind will respond expeditiously to claims of copyright infringement using the Services that are reported to Elemind’s copyright agent in the notification explained above. It is Elemind’s policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.

Changes to Terms of Use

Elemind may revise and update these Terms of Use at any time in our sole discretion and will publish such revisions and updates from time to time on or through our website and by updating the “effective as of” date at the top of this page. If the changes are material, Elemind will take reasonable steps to notify you of those changes. If you do not agree to the changed terms, then you must immediately stop using the Services.

Feedback 

Should you provide input and feedback regarding the Services, your experience, or Elemind, that input and feedback will become our property and you assign to Elemind all rights in same. Elemind may use that information for our business or other purposes (including continuing to improve the Services) without providing any compensation or other consideration.

Termination

These Terms are effective until terminated. You may terminate these Terms by logging into your account and terminating your Membership or by deleting your account from the Shopify customer portal. 

Elemind reserves the right to terminate these Terms, and/or temporarily or permanently suspend, withdraw or restrict your access to some or all of the Services , at any time, effective immediately with notice, if Elemind determines your use of the Services is unacceptable or violates these Terms. If Elemind terminates or restricts your use and access of the Services, you must immediately stop using all portions of the Services and delete the Elemind App from your mobile device.

Warranty; Warranty Disclaimer

The Services may be temporarily unavailable from time to time for maintenance or other reasons. Elemind shall have no responsibility for any interruption, delay in operation of the Services.

EXCEPT FOR THE WARRANTIES SET FORTH BELOW WITH RESPECT TO ELEMIND AND THE SUPPORT SERVICES PROVIDED TO YOU, THE SERVICES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND AND NEITHER ELEMIND NOR ANY OF ITS EMPLOYEES OR LICENSORS MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED REGARDING THE SERVICES  OR THE HEADBAND, AND ALL SUCH ADDITIONAL WARRANTIES ARE EXPRESSLY DISCLAIMED. THIS INCLUDES ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, NON-INFRINGEMENT, OR OTHER VIOLATIONS OF RIGHTS. 

Elemind warrants to the original purchaser that your Elemind headband shall be free from defects in materials and workmanship under normal use for a period of one (1) year from the date of purchase (the "Warranty Period"). This Limited Warranty is valid only in the jurisdictions where the Products are sold by Elemind.

If a hardware defect arises with respect to the headband and a valid claim is received by Elemind within the Warranty Period, Elemind will, at its option and to the extent permitted by law, either (1) repair the headband at no charge, using new or refurbished replacement parts or (2) replace the headband with a new or refurbished device. In the event of a defect, to the extent permitted by law, these are your sole and exclusive remedies. Shipping and handling charges may apply. Any replacement headband will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.

This Limited Warranty does not cover software embedded in the headband, the Elemind Membership or Elemind App. This Limited Warranty applies only to headbands manufactured by Elemind that can be identified by the “Elemind” trademark, trade name, or logo affixed to it. This Limited Warranty does not apply to any (a) Elemind products and Services other than the headband, (b) any non-Elemind product, or (c) Products purchased from any party other than Elemind or through any unauthorized distributor. Modifying or altering the headband in any way may void this Limited Warranty. 

The Elemind headband is hand-washable with a damp cloth and mild soap.  Any damage resulting from machine washing, submersion in water, or use of abrasive or chemical cleaners will void the Limited Warranty. 

Limitation of Liability

IN NO EVENT SHALL ELEMIND BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, LIQUIDATED, OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, PROFIT OR GOODWILL, OR DUE TO BUSINESS INTERRUPTION, UNAUTHORIZED ACCESS OR OTHER INTANGIBLE LOSSES), IN CONNECTION WITH THESE TERMS OF USE, THE SERVICES  OR USE OF THE SERVICES  OR THE DELAY OR INABILITY TO USE THE SERVICES , REGARDLESS OF LEGAL THEORY (INCLUDING NEGLIGENCE), EVEN IF ELEMIND WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT WILL ELEMIND’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR HEADBAND EXCEED THE AMOUNTS YOU HAVE PAID FOR USE OF THE SERVICES  OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER.

THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, Elemind’s liability shall be limited to the fullest extent permitted by law.

Indemnification

You agree to indemnify and hold Elemind harmless from and against any and all liabilities, expenses, damages, losses, fines or penalties (including reasonable attorneys’ fees) incurred by Elemind in connection with any claims, causes of action or demands against Elemind arising out of or related to: (a) your access to or use of the Services, (b) any act of fraud or dishonesty by you in connection with your use of the Services, (c) any damage and/or any of the other medical conditions arising from or relating to the use of the Services by you, or (d) any breach by you of these Terms of Use or any applicable laws or any unauthorized use of the Services. Elemind may assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.

Equitable Remedies

In the event that you breach these Terms, you agree that Elemind would be irreparably damaged. Elemind may therefore be entitled, without bond, other security, or proof of damages, to seek appropriate equitable remedies with respect to breaches of these Terms of Use in addition to such other remedies as Elemind may otherwise have available to it under applicable laws.

Dispute Resolution and Governing Law

  • Binding Arbitration. Any dispute (“Dispute”) involving the Services or these Terms shall be finally and exclusively resolved by binding arbitration.  The Dispute shall be submitted to arbitration by one arbitrator mutually agreed upon by the parties, and if no agreement can be reached within thirty (30) days after names of potential arbitrators have been proposed by JAMS, then by one arbitrator having reasonable experience in disputes of the type provided for in this Agreement and who is chosen by JAMS. The arbitration shall take place in Cambridge, Massachusetts . The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS' Streamlined Arbitration Rules and Procedures. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et. seq., and except as set forth below, the arbitral award shall be final, binding and incontestable and judgment thereon may be entered in any court of competent jurisdiction. The arbitrator shall award only such damages as are permitted to be awarded pursuant to these Terms of Use, each party expressly waives and foregoes any right to punitive, exemplary or similar damages unless applicable law prohibits such waiver. The arbitrator must render their award within thirty (30) days following the last hearing scheduled by the arbitrator and at that time state the reasons for their award in writing. An appeal may be taken under the JAMS Arbitration Appeal Procedure from any final award of an arbitral panel in any arbitration arising out of or related to these Terms of Use that is conducted in accordance with such procedure. Unless otherwise agreed by the parties and the appeal tribunal, the appeal shall be conducted at the place of the original arbitration. 
  • Restrictions. You and Elemind agree that any arbitration shall be limited to the Dispute between Elemind and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. Any Dispute not subject to arbitration, or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the state courts of Massachusetts or the United States District Court for the District of Massachusetts , and you hereby agree to submit to the personal jurisdiction of that court. 
  • Exceptions to Arbitration. You and Elemind agree that the following Disputes are not subject binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Elemind’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief. 

 

Governing Law
Except as expressly stated otherwise, these Terms of Use shall be governed by, and will be construed under, the laws of the United States of America and the law of the State of Massachusetts , without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

App Stores (Google Play Store and Apple App Store)

The following terms and conditions apply to you if you are using the Elemind App that you downloaded from a third party app store (collectively “App Store”). To the extent other terms and conditions of the Terms of Use are less restrictive than, or otherwise conflict with, the terms and conditions of this section, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to use of any Elemind App downloaded from an App Store. 

You acknowledge and agree that these Terms of Use are solely between you and Elemind, not any entity providing an App Store , and that no App Store has any responsibility for the Elemind App or content thereof. Your use of the Elemind App must comply with the App Store Terms and Conditions. You acknowledge that App Stores have no obligation to furnish any maintenance and support Services with respect to the Elemind App. If the Elemind App fails to conform to any applicable warranty, you may notify the App Store where you purchased the Elemind App and that App Store may refund the purchase price, if any. To the maximum extent permitted by applicable law App Stores will have no other warranty obligation whatsoever with respect to the Elemind App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms of Use. You and Elemind acknowledge that App Stores are not responsible for addressing any claims of you or any third party relating to the Elemind App or your possession and/or use of the Elemind App, including, but not limited to: (i) product liability claims; (ii) any claim that the Elemind App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and Elemind acknowledge that, in the event of any third party claim that the Elemind App or your possession and use of that Elemind App infringes that third party’s intellectual property rights, Elemind, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use. You must comply with applicable third party terms of agreement when using the Elemind App.

General Provisions

  • Assignment. Elemind may assign these Terms of Use, in whole or in part, to any person or entity at any time with or without your consent. You may not assign these Terms of Use, or assign, sublicense, pledge, or otherwise transfer or share the benefit of any or all of your rights, if any, in the Services, and any attempt to the contrary is void.
  • Severability. If any provision of these Terms of Use shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.
  • No Waiver. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.

Entire Agreement. These Terms of Use are the complete and exclusive statement of the agreement between you and Elemind concerning the Services, and these Terms of Use supersede any prior or contemporaneous agreement, either oral or written, and any other communications with regard thereto between you and Elemind.
Contact

If you have any questions on these Terms of Use, please contact us at support@elemindtech.com