Mintal Tracker

Terms of Service Agreement

A.     WELCOME

  1. HiClub operates a service, which we make available through an application available for download on your mobile device (the "Mintal Tracker"), a sleep tracker and snoring recorder designed to help you sleep better and wake up more naturally (the "Service").
  2. The Service is provided by HiClub Inc. ("HiClub", "we," or "us"). HiClub is a company registered in Japan, with its address at 6-10-1, Roppongi, Roppongi Hills Mori Tower, Minato-Ku, Tokyo 106-0032, Japan.

B.YOUR RELATIONSHIP WITH US

  1. This document and any documents referred to within it (collectively, these "Terms of Service") explains the terms on which you may use the Service.
  2. Please read these Terms of Service carefully to ensure that you understand them before you use the Service.
  3. By accessing or using the Service, you signify that you have read and understood, and agree to be bound by these Terms of Service and to the collection and use of your information as set forth in our Privacy Notice.
  4. This is a contract between you and us. You must read and agree to these terms before using the Service. You may use the Service only if you can form a binding contract with us, and only in compliance with these Terms of Service and all applicable local, state, national, and international laws, rules and regulations. You must be 13 years or older and capable in your country of residence of entering into a legally binding agreement to use the Service. If you do not agree to these Terms of Service, please do not use the Service. These Terms of Service apply to all visitors, users, and others who register for or otherwise access the Service (“Users”). The Service is not available to any Users previously removed from the Service by us.
  5. Certain services may be subject to additional terms and conditions specified by us from time to time, and your use of such services is subject to those additional terms and conditions, which are hereby incorporated into these Terms of Service by reference.
  6. PLEASE READ THESE TERMS OF SERVICE CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS OF SERVICE CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

C.YOUR INFORMATION

  1. Your privacy is important to us. Please read our Privacy Notice to understand how we collect, use and share information about you.

D.YOUR RIGHT TO USE THE SERVICE

  1. Subject to the terms and conditions of these Terms of Service, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for one account on one mobile device owned or leased solely by you, for the sole purpose of using the Service in accordance with these Terms of Service. We reserve all rights not expressly granted herein in the Service and the HiClub Content (as defined below). We may terminate this license at any time for any reason or no reason. Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms of Service, is void.
  2. Your right to use the Service, and any content that we make available through the Service, is personal to you and you are not allowed to give this right to another person. Your right to use the Service does not stop us from giving other people the right to use the Service.
  3. We do not warrant that the Mintal Tracker App will be compatible with your mobile device. You may use mobile data in connection with the Mintal Tracker App and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.
  4. Unless allowed by these Terms of Service and as permitted by the functionality of the Service, you agree:
    1. not to copy, distribute, or disclose any part of the Service, any portion of the Service or content available through the Service, in any medium;
    2. not to give or sell or otherwise make available the Service, any portion of the Service or content available through the Service to anybody else;
    3. not to change the Service or any portion of the Service or content available through the Service in any way;
    4. not to look for or access the code of the Service or any portion of the Service that we have not expressly published publicly for general use.
  5. You agree that all confidential information, copyright and other intellectual property rights in the Service belong to us or the people who have licensed those rights to us.
  6. You agree that you have no rights in or to the Service other than the right to use them in accordance with these Terms of Service.
  7. Accessing any audiovisual content that may be available on the Service for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited unless explicitly permitted by the functionality of the Service. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Service to a User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User.
  8. We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms of Service, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms of Service.
  9. You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. We shall have no liability for your interactions with other Users, or for any User’s action or inaction.

E.SERVICE accounts

  1. Your account gives you access to the Service, including the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users.
  2. You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify us immediately of any breach of security or unauthorized use of your account. We will not be liable for any losses caused by any unauthorized use of your account.
  3. You may control your User profile and how you interact with the Service by changing the settings in your settings page. By providing us your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.

F.APPLE APP STORE PROVISIONS

  1. This Section F applies where the Mintal Tracker App has been acquired from the Apple App Store. You acknowledge and agree that these Terms of Service are solely between you and us, not Apple, Inc. ("Apple") and that Apple has no responsibility for the Mintal Tracker App or content thereof. Your use of the Mintal Tracker 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 Mintal Tracker App. In the event of any failure of the Mintal Tracker App to conform to any applicable warranty, you may notify Apple, and where applicable Apple will refund the purchase price for the Mintal Tracker App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Mintal Tracker 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 Service and any law applicable to us as provider of the Mintal Tracker App.
  3. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Mintal Tracker App or your possession and/or use of the Mintal Tracker App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms of Service and any law applicable to us as provider of the software.
  4. You acknowledge that, in the event of any third-party claim that the Mintal Tracker App or your possession and use of the Mintal Tracker App infringes that third party’s intellectual property rights, we, 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 these Terms of Service.
  5. You represent and warrant that (i) you are not located in a country that is subject to U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
  6. You and HiClub acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service as relates to your license of the Mintal Tracker App, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service as they relate to your license of the Mintal Tracker App against you as a third-party beneficiary thereof.

G.  PAID PORTIONS OF THE SERVICE; SUBSCRIPTIONS

  1. Paid Services. Certain aspects of the Service may be provided for a fee or other charge. If you elect to use paid aspects of the Service, you agree to the pricing and payment terms set forth on our [Pricing Page], as we may update them from time to time. HiClub may add new services for additional fees and charges, add or amend fees and charges for existing services, at any time in its sole discretion. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in these Terms of Service.
  2. Paid Features; Subscription Fees. We may sell subscriptions or premium content through the Service (“Paid Features”), which may be available on an automatically renewing subscription basis (“Subscription Fees”). We may make any portion of our Service available on a subscription basis, discontinue subscriptions for Paid Features, or add or amend the Subscription Fees at our sole discretion. Any change to our Subscription Fees shall become effective in the Subscription Term (as defined below) following notice of such change to you as provided in these Terms of Service; provided however, that if we have offered a specific duration and Subscription Fees for your use of the Paid Features, we agree that the Subscription Fees will remain in force for that duration. YOUR SUBSCRIPTION TO THE PAID FEATURES WILL AUTOMATICALLY RENEW AT THE END OF YOUR SUBSCRIPTION TERM IDENTIFIED IN YOUR ORDER FOR SUBSEQUENT TERMS EQUAL IN LENGTH TO THE INITIAL SUBSCRIPTION TERM (EACH A “SUBSCRIPTION TERM”) UNLESS AND UNTIL YOU CANCEL YOUR PAID FEATURES IN ACCORDANCE WITH THE CANCELLATION PROCEDURES IDENTIFIED IN SECTION G.5 OF THESE TERMS OF SERVICE.
  3. Automatic Billing and Policies. When you purchase Paid Features, you expressly acknowledge and agree that: (1) HiClub  and/or its third-party payment processors, including through the Apple App Store [and Google Play App Store (together with any similar applications, “App Stores”)], are authorized to charge you using a current, valid, accepted payment method at the beginning of each Subscription Term the Subscription Fees for your Paid Features identified in your order, any applicable taxes, and any other charges you may incur in connection with your purchase and use of the Paid Features, subject to adjustment in accordance with the terms and conditions of these Terms of Service, for as long as your subscription continues; and (2) your subscription is continuous until you cancel it or the Paid Features or your subscription to the Paid Features is suspended, discontinued or terminated in accordance with these Terms of Service. You acknowledge and agree that the amount billed may vary due to promotional offers, changes in the Subscription Fees for Paid Features in accordance with Section G.2, and changes in applicable taxes, and you authorize us to charge your payment method for the changed amounts.
  4. Cancelling the Service. You may cancel your User account at any time; however, you acknowledge and agree that you may not be refunded any Subscription Fees for your cancellation of your subscription to the Paid Features, including without limitation, for any unused time with your Paid Features. In the event that HiClub suspends or terminates your User account or these Terms of Service for your breach of these Terms of Service, you understand and agree that you shall receive no refund for any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your User account, or for anything else.
  5. Cancellation Procedure. To cancel your subscription to the Paid Features, you must notify us at least twenty-four (24) hours before the start of the next Subscription Term using the appropriate functionalities of the Service or App Stores, or by contacting us at trackerhiclub@gmail.com.
  6. Offers. You acknowledge and agree that any offers made available through the Service, including without limitation offers for the Paid Features, are subject to change at any time and from time to time.
  7. Payment Information; Taxes. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with HiClub must be accurate, complete, and current. We accept various methods for payments made through the Service and you agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with HiClub at the prices in effect when such charges are incurred. HiClub will not fulfill any monetary transaction interaction without authorization validation of your purchase from your payment method. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.

H.FREE TRIALS; INTRODUCTORY OFFERS

  1. The Paid Features may start with discounted introductory offers, such as a free trial, to eligible Users (“Introductory Offer”). The duration of the Introductory Offer period of the Paid Features will be specified during sign-up and is intended to allow new and certain former members to try the Service.
  2. Introductory Offer eligibility is determined by HiClub at its sole discretion and we may limit eligibility or duration to prevent Introductory Offer abuse. We reserve the right to revoke the Introductory Offer and put your account on hold in the event that we determine that you are not eligible. Members of households with an existing or recent Paid Feature are not eligible. We may use information such as device ID, method of payment or an account email address used with an existing or recent Paid Feature to determine eligibility. For combinations with other offers, restrictions may apply.
  3. We will charge the Subscription Fee for your next billing cycle to your payment method at the end of the Introductory Offer period and your subscription to the Paid Features will automatically renew unless you cancel your membership prior to the end of the Introductory Offer period in accordance with Section G.2. To view the applicable membership price and end date of your Introductory Offer period, visit app store “Account” page and click on the “Subscriptions” link.

I.USER CONTENT

  1. Some functionalities of the Service allow you to provide, share or post content or information such as images, videos, music and comments (collectively, "User Content").
  2. Subject to the licenses granted in these Terms of Service, you retain ownership of any copyright and other rights you may have in the User Content and we claim no ownership rights over User Content created by you. By submitting or posting any User Content, you grant us a worldwide, irrevocable, non-exclusive, royalty-free, perpetual, sublicensable and transferable, license to use, copy, reproduce, distribute, adapt, re-format, modify, publish, translate, license, sub-license, and exploit the User Content anywhere and in any form for the purposes of providing and improving the Service, as well as your name, persona and likeness included in any User Content and your social media account handle, username, real name, profile picture, and/or any other information associated with the User Content, in any commercial or noncommercial manner whatsoever, in whole or in part, in any and all distribution channels, forms, media or technology, whether now known or hereafter developed and with or without attribution and without further notice to you. HiClub will be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products that incorporate or otherwise rely upon such information. HiClub shall have no obligation to use or display User Content, compensate you for submitting User Content or respond to any User Content.
  3. By submitting or posting User Content on the Service, on your social media accounts or through any tools or applications we provide for posting or sharing your User Content with us, you represent and warrant that (i) you are able to grant us the above license for any third-party owned content you include in your User Content; (ii) you have obtained permission from any individuals that appear in the User Content to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (iii) you are 13 years of age or older; and (iv) the User Content does not (a) contain false or misleading information, (b) infringe on the intellectual property, privacy, publicity, statutory, contractual or other rights of any third party, (c) contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing or hateful content, (d) contain any addresses, email addresses, phone numbers or any contact information or (e) contain computer viruses, worms or other harmful files. Upon request by us, you will furnish us any documentation, substantiation or releases necessary to verify your compliance with these Terms of Service. You are solely responsible for the User Content and you hereby agree to indemnify and hold us and our employees, agents, affiliates, assigns and licensees harmless from any and all damages, claims, expenses, costs or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party.
  4. We do not guarantee the truthfulness, accuracy or reliability of any User Content or endorse any opinions expressed by you or anyone else. By submitting or posting the User Content you fully and unconditionally release and forever discharge us and our officers, directors, employees and agents from any and all claims, demands and damages (actual or consequential, direct or indirect), whether now known or unknown, of every kind and nature relating to, arising out of or in any way connected with: (i) disputes between you and one or more users or any other person or entity, or (ii) the use by us or you of the User Content, including, without limitation, any and all claims that use of the User Content pursuant to these Terms of Service violates any of your intellectual property rights, copyrights, rights of publicity or privacy, “moral rights,” or rights of attribution and integrity. You acknowledge and agree that we have no control over, and shall have no liability for any damages resulting from, the use (including, without limitation, re-publication) or misuse by you or any third party of any User Content. We act as a passive conduit for User Content and have no obligation to screen or monitor User Content. If we become aware of any User Content that allegedly may not conform to these Terms of Service, we may investigate the allegation and determine in our sole discretion whether to take action in accordance with these Terms of Service. We have no liability or responsibility to Users for performance or nonperformance of such activities.
  5. Our right to use your User Content does not in any way affect your privacy rights. Please see our Privacy Notice which provides information on how we use your personal information.
  6. You confirm that your User Content will meet the Rules of Acceptable Use set forth in Section J below. WE HAVE THE ABSOLUTE RIGHT TO MONITOR ANY USER CONTENT AND TO REJECT, REFUSE OR DELETE ANY USER CONTENT WHERE WE THINK, IN OUR SOLE DISCRETION, THAT IT BREAKS ANY OF THE RULES OF ACCEPTABLE USE AND/OR THIS SECTION I. YOU CONSENT TO SUCH REMOVAL AND/OR DELETION AND WAIVE ANY CLAIM AGAINST US FOR SUCH REMOVAL AND/OR DELETION. WE ARE NOT RESPONSIBLE OR LIABLE FOR FAILURE TO STORE POSTED CONTENT OR OTHER MATERIALS YOU TRANSMIT THROUGH THE SERVICE. YOU SHOULD TAKE MEASURES TO PRESERVE COPIES OF ANY DATA, MATERIAL, CONTENT OR INFORMATION YOU POST ON THE SERVICE OR ANY OTHER SITES OR PLATFORMS.

J.RULES OF ACCEPTABLE USE

  1. When using the Service, you will not, and you will not assist, permit or enable others to, do any of the following:
    1. copy, distribute, or disclose any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;
    2. attempt to circumvent, disable, compromise or otherwise interfere with any security related features of the Service;
    3. permit another person to use the Service on your behalf unless such person is authorized by you;
    4. use the Service if we have suspended or banned you from using it;
    5. advocate, promote or engage in any illegal or unlawful conduct or conduct that causes damage or injury to any person or property;
    6. modify, disassemble, decompile or reverse engineer the Service or interfere, intercept, disrupt or hack the Service;
    7. misuse the Service by knowingly introducing viruses, Trojans, worms, logic bombs or other material which would harm the Service or any user of the Service's own equipment;
    8. collect or harvest any data from the Service other than in accordance with these Terms of Service;
    9. transmit spam, chain letters, or other unsolicited email;
    10. submit or contribute any User Content that contains nudity or violence or is abusive, threatening, obscene, misleading, untrue or offensive;
    11. submit or contribute any User Content that you do not own or have the right to use or otherwise infringe the copyright, trademark or other rights of third parties;
    12. use any User Content in violation of any licensing terms specified by the owner;
    13. submit or contribute any information or commentary about another person without that person's permission;
    14. use the Service for any commercial solicitation purposes;
    15. threaten, abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety or be likely to harass, upset, embarrass, alarm or annoy any other person;
    16. impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity;
    17. use any automated system, including without limitation "robots", "spiders" or "offline readers" to access the Service in a manner that send more request messages to the Service than a human can reasonably produce in the same period of time;
    18. rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Service to any third party or use the Service to provide time sharing or similar services for any third party;
    19. remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service, features that prevent or restrict use or copying of any content accessible through the Service, or features that enforce limitations on use of the Service;
    20. delete the copyright and other proprietary rights notices on the Service; or
    21. bypass the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein, or access any content on the Service through any technology or means other than those provided or authorized by the Service.
  2. You acknowledge that HiClub may from time to time issue upgraded versions of the Service, and may automatically electronically upgrade the version of the Service that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms of Service will apply to all such upgrades. Any third-party code that may be incorporated in the Service is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Service or any copy thereof, and HiClub or its third-party partners or suppliers retain all right, title, and interest in the Service (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms of Service, is void.
  3. Failure to comply with the Rules of Acceptable Use constitutes a material breach of these Terms of Service, and may result in our taking all or any of the following actions (with or without notice):
    1. immediate, temporary or permanent withdrawal of your right to use our Service;
    2. immediate, temporary or permanent removal of any User Content;
    3. issuing of a warning to you;
    4. legal action against you including proceedings for reimbursement of all costs (including, but not limited to, reasonable administrative and legal costs) resulting from the breach;
    5. disclosure of such information to law enforcement authorities as we reasonably feel is necessary.
  4. The responses described in Section J are not limited, and we may take any other action we reasonably deem appropriate.

K.oUR PROPRIETARY RIGHTS

  1. Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “HiClub Content”), and all intellectual property rights related thereto, are the exclusive property of HiClub and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in these Terms of Service shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any HiClub Content. Use of the HiClub Content for any purpose not expressly permitted by these Terms of Service is strictly prohibited.
  2. You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by its employees, or obtained from sources other than you.

L.ENDING OUR RELATIONSHIP

  1. If at any time you do not feel that you can agree to these Terms of Service or any changes made to these Terms of Service or the Service, you must immediately stop using the Service.
  2. We may immediately end your use of the Service if you break the Rules of Acceptable Use, any other important rule(s), or any other terms and conditions we set for accessing and using the Service including these Terms of Service.
  3. We may also withdraw the Service as long as we give you reasonable notice that we plan to do this.
  4. If you or we end your use of the Service or we withdraw the Service as described in this Section L, we may delete your User Content or any other information we hold about you. You will also lose any rights you have to use the Service or access HiClub Content or your User Content. We will not offer you compensation for any losses.
  5. The termination of your use of the Service and shall not affect any of your obligations to pay any sums due to us.
  6. Nothing in this Section L affects any legal rights you may have under the law of the country in which you reside.

M.PRIVACY AND SECURITY

  1. We care about the privacy of our Users. You understand that by using the Services you consent to the collection, use and disclosure of your personally identifiable information and aggregate data as set forth in our Privacy Notice, and to have your personally identifiable information collected, used, transferred to and processed in the United States.
  2. We care about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

N.copyright complaints

It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:

1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;

2. Identification of the copyrighted work that you claim has been infringed;

3. Identification of the material that is claimed to be infringing and where it is located on the Service;

4. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, email address;

5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and

6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

The above information must be submitted to the following DMCA Agent:

Attn: DMCA Notice

HiClub Inc.

Address: 6-10-1, Roppongi,

Roppongi Hills Mori Tower,

Minato-Ku, Tokyo 106-0032,

Japan

Email: trackerhiclub@gmail.com

Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.

Please note that this procedure is exclusively for notifying HiClub and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with HiClub’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

O.OUR LIABILITY / RESPONSIBILITY TO YOU

  1. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HICLUB OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, HICLUB, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE HICLUB CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
  2. HICLUB DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND HICLUB WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
  3. FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS OF SERVICE GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS OF SERVICE WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
  4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HICLUB, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL HICLUB BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
  5. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HICLUB ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL HICLUB, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO HICLUB HEREUNDER OR $100.00, WHICHEVER IS GREATER.
  6. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF HICLUB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
  7. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS OF SERVICE GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THE TERMS OF SERVICE WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
  8. THE Mintal Tracker APP AND HICLUB CONTENT MADE AVAILABLE IN CONNECTION WITH THE Mintal Tracker APP ARE INTENDED TO PROMOTE RELAXATION, SLEEP, AND GENERAL WELLBEING. ANY AND ALL SERVICES PROVIDED BY, IN AND/OR THROUGH THE SERVICE ARE FOR INFORMATIONAL PURPOSES ONLY. HICLUB IS NOT A HEALTHCARE OR MEDICAL PROVIDER AND THE SERVICE DOES NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL SERVICES OR ADVICE. USE OF THE SERVICE IS NOT FOR MEDICAL EMERGENCIES. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 OR THE RELEVANT EMERGENCY NUMBER IN YOUR JURSIDICTION.
  9. THE INFORMATION AND REPORTS GENERATED BY US, INCLUDING THE [SLEEP ANALYSIS REPORT], SHOULD NOT BE INTERPRETED AS A SUBSTITUTE FOR A PHYSICIAN CONSULTATION, EVALUATION, OR TREATMENT, AND THE INFORMATION MADE AVAILABLE ON OR THROUGH THE SERVICE SHOULD NOT BE RELIED UPON WHEN MAKING MEDICAL DECISIONS, OR TO DIAGNOSE OR TREAT A MEDICAL OR HEALTH CONDITION. YOUR USE OF THE SERVICE DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND HICLUB. YOU SHOULD NOT RELY ON THE Mintal Tracker APP OR HICLUB CONTENT AS AN ALTERNATIVE TO SEEKING MEDICAL ADVICE FROM YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER OR AS AN ALTERNATIVE TO MEDICAL TREATMENT. ALWAYS CONSULT YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER BEFORE ENGAGING IN A NEW TREATMENT, DIET OR PHYSICAL ACTIVITY, INCLUDING BUT NOT LIMITED TO USING THE Mintal Tracker APP OR HICLUB CONTENT FOR THEIR INTENDED PURPOSE. THE Mintal Tracker APP AND HICLUB CONTENT SHOULD NOT BE USED WHILE DRIVING, OPERATING HEAVY MACHINERY, OR AT ANY OTHER TIME WHEN FULL ALERTNESS MAY BE REQUIRED.

P.INDEMNITY

1. You agree to defend, indemnify and hold harmless HICLUB and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of theSE Terms of service, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your GROSS NEGLIGENCE, FRAUD, OR willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.

Q.UPDATES

  1. We are constantly updating and improving the Service to try and find ways to provide you with new and innovative features and services. Improvements and updates are also made to reflect changing technologies, tastes, behaviors and the way people use the Internet and our Service.
  2. In order to do this, we may need to update, reset, stop offering and/or supporting a particular part of the Service, or feature relating to the Service ("Changes to the Service"). These Changes to the Service may affect your past activities on the Service, features that you use and your User Content ("Service Elements"). Any changes to the Service could involve your Service Elements being deleted or reset. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms of Service will apply to all such Changes to the Service.
  3. You agree that a key characteristic of our Service is that changes to the Service will take place over time and this is an important basis on which we grant you access to the Service. Once we have made changes to the Service, your continued use of the Service will show that you have accepted any changes to the Service. You are always free to stop using the Service.

R.THIRD-PARTY LINKS AND INFORMATION

  1. The Service may display or contain links to third party software or other materials that are not owned or controlled by us ("Third-Party Content"). Your use of this Third-Party Content may be subject to additional terms and conditions imposed by that third party. We do not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Service or share your User Content on or through any third-party website or service, you do so at your own risk, and you understand that these Terms of Service and our Privacy Notice do not apply to your use of such sites. You expressly relieve us from any and all liability arising from your use of any third-party website, service, or content, including without limitation User Content submitted by other Users. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that we shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

S.CHANGES TO THE DOCUMENTS

  1. We may, in our sole discretion, modify, update, or revise these Terms of Service from time to time but the most current version will always be available on the then-current website for the Mintal Tracker App. When we change these Terms of Service in a material manner, we will update the ‘last modified’ date at the bottom of this page and notify you that material changes have been made to these Terms of Service. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.
  2. Changes will usually occur because of new features being added to the Service, changes in the law or where we need to clarify our position on something.
  3. Normally, we will try to give you some warning before the new terms become effective. However, sometimes changes will need to be made immediately and if this happens we will not give you any notice. We may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in these Terms of Service. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.

T.DOCUMENTS THAT APPLY TO OUR RELATIONSHIP WITH YOU

  1. The current version of these Terms of Service contains the only terms and conditions that apply to our relationship with you.
  2. We intend to rely on these Terms of Service as setting out the written terms of our agreement with you for the provision of the Service. If part of these Terms of Service cannot be enforced then the remainder of these Terms of Service will still apply to our relationship.
  3. If you do not comply with these Terms of Service and we do not take action immediately, this does not mean we have given up any right we have and we may still take action in the future.

U. Governing law and arbitration

  1. These Terms of Service shall be governed by the laws of California without regard to conflict of laws principles, except as otherwise specified in this Section U. The Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. The parties acknowledge that these Terms of Service evidence a transaction involving interstate commerce. Notwithstanding any other term in these Terms of Service, the Federal Arbitration Act (9 U.S.C. §§ 1-16, et seq.) shall govern the interpretation and enforcement of this Section U.2 (the “Arbitration Agreement”) and preempts all state law to the fullest extent permitted by law. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and HiClub agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration Agreement below, including any provisional relief required to prevent irreparable harm. You and HiClub further agree that the federal and state courts located in Santa Clara County, California are the exclusive and proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the Arbitration Agreement is found to be unenforceable, and you and HiClub expressly consent to the personal jurisdiction of these courts.

 

  1. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU MAY SEEK RELIEF FROM HICLUB.

 

This Arbitration Agreement applies to and governs any dispute, controversy, or claim between you and HiClub that accrues at any time, before or after your agreement to these Terms of Service, and arises out of or relates to: (i) these Terms of Service, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (ii) access to or use of the Service, including receipt of any advertising or marketing communications; (iii) any transactions through, by, or using the Service, including any goods or services purchased or sold through, by, or using the Service; or (iv) any other aspect of your relationship or transactions with HiClub as a consumer (the “Dispute” or “Disputes”).

 

If you are a new HiClub customer, you can reject and opt-out of this Arbitration Agreement within thirty (30) days of accepting these Terms of Service by emailing HiClub at trackerhiclub@gmail.com with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect the controlling effect or enforceability of any other provision of these Terms of Service, including the provisions regarding controlling law and the exclusive jurisdiction of the federal and state courts located in Santa Clara County, California.

 

WAIVER OF RIGHT TO TRIAL BY JURY: BY ENTERING INTO THESE TERMS OF SERVICE, YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY DISPUTE (AS DEFINED ABOVE), YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY.

 

WAIVER OF RIGHT TO PARTICIPATE IN CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION (THE “CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION WAIVER”): BY ENTERING INTO THESE TERMS OF SERVICE, YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY DISPUTE (AS DEFINED ABOVE), YOU AND WE ARE EACH WAIVING THE RIGHT TO BRING, JOIN, OR PARTICIPATE IN, EITHER AS A PLAINTIFF OR CLASS MEMBER, IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION OR PROCEEDING. YOU ALSO ACKNOWLEDGE AND AGREE THAT, UNLESS YOU AND WE OTHERWISE AGREE IN WRITING, ANY ARBITRATION OF ANY DISPUTE (AS DEFINED ABOVE) WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING.  YOU FURTHER ACKNOWLEDGE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY IN YOUR FAVOR AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY YOUR INDIVIDUAL CLAIM(S), AND ANY RELIEF AWARDED CANNOT AFFECT OTHER HICLUB CUSTOMERS.  THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS OR ENGAGE IN ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ARBITRATION.

 

 

For any and all Disputes, you agree to first contact us at [trackerhiclub@gmail.com] and attempt to resolve the Dispute with us informally. If you and HiClub do not reach amicable resolution after sixty (60) days, you and HiClub shall resolve any and all Disputes exclusively through binding arbitration administered by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS (available at: www.jamsadr.com), except as otherwise provided in this Section U. JAMS may also be contacted at www.jamsadr.com. The arbitration shall be conducted in Santa Clara County, California, unless you and HiClub agree otherwise. You and HiClub agree to pay all arbitration fees in accordance with JAMS rules applicable to the arbitration of your Dispute. Any judgment upon any award rendered in such arbitration shall be binding and may be entered by any court of competent jurisdiction. Notwithstanding any other provision in these Terms of Service, and to the maximum extent permitted by law, each party shall bear its own costs relating to or arising out of any Dispute. Notwithstanding this mandatory Arbitration Agreement, (i) you may assert claims in small claims court, if your claims otherwise qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (ii) you and HiClub each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s data security, intellectual property rights, or other proprietary rights.

 

If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class, Collective, or Representative Action Waiver above is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction.  All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.

 

V.ENTIRE AGREEMENT/SEVERABILITY

These Terms of Service, together with any amendments and any additional agreements you may enter into with us in connection with the Service, shall constitute the entire agreement between you and us concerning the Service. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect.

W.aSSIGNMENT

These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.

X.NO WAIVER

No waiver of any term of these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under the Terms of Service shall not constitute a waiver of such right or provision.

Y.CALIFORNIA RESIDENTS

The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

 

CONTACT

Please contact us at trackerhiclub@gmail.com with any questions regarding the Terms of Service.

LAST MODIFIED

These Terms of Service were last modified on December 15, 2020.