Neuromotion Inc. d/b/a Mightier Terms of Use

Last updated: June 10, 2024

Welcome to the website, application, and/or proprietary emotional regulation software platform operated by Neuromotion Inc. d/b/a Mightier (“Neuromotion,” “we,” “us,” or “our”) that operates through a connected heart rate monitor and a digital device such as a tablet or smartphone (collectively, the “Service”), made available to our registered users. The Service enables registered users (“Users,” “you,” or “your”) to create an account, connect with other users, and work with us in assisting your child to learn emotional regulation skills.

Every time users visit or use features of the Service, you agree to be bound by these Terms of Use (“Terms”). These Terms outline your rights, obligations, and restrictions regarding your use of the Service; please read them carefully. If you do not agree to be bound by the Terms and all applicable laws, you should discontinue use of the Service immediately. In addition to these Terms, use of the Service is subject to the Neuromotion Privacy Policy. Please read our Privacy Policy carefully for information relating to our collection, use, and disclosure of your personal information.

Neuromotion may modify the Terms from time to time and each modification will be effective when it is posted on the Service. We will notify you of substantive modifications to these Terms the first time you access the Service following any such modification, and you agree to be bound to any changes to the Terms through your continued use of the Service.

NEUROMOTION IS NOT A LICENSED MENTAL HEALTH CARE PROVIDER. The Service is not intended to be, and must not be taken to be, the practice of medicine or the provision of medical care. The use of this Service does not create a medical professional-patient relationship and does not constitute an opinion, medical advice, diagnosis, or treatment. Do not use this Service as a replacement for medical advice, diagnosis, or treatment from a qualified health care professional. Nothing stated in or posted on the Service or otherwise available through the Service is intended to be, and must not be taken to be, the practice of medicine, psychology, counseling, or other professional health care advice, or the provision of medical care.

User Eligibility

The Service is a platform for parents, authorized legal guardians (“guardian”), educational and medical professionals, and/or caregivers to use with their children.

You represent and warrant that you are of legal age to form a binding contract (or if not, you have received your parent’s or guardian’s permission to use the Service and have gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity (for example, if you’re an administrator agreeing to these Terms on behalf of your institution), you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms.

COPPA

Creating an Account

You must provide certain personal information such as your full name, email address, and phone number to create an account (your “Account”) so you can use the Service. You may also provide additional profile information such as your child’s name, age, and behavioral issues, which we use to help us tailor the Service to you and your child. Please refer to our Privacy Policy for information about how we protect your and your child’s personal information.

You are responsible for ensuring that any personal information you provide is accurate and up to date. Neuromotion reserves the right to verify the accuracy of the information you provide at any time. You are responsible for creating a username and a secure password and protecting your Account from unauthorized access. You agree to notify Neuromotion immediately if you believe your username, password, or other identifying information has been lost, stolen, or otherwise compromised. You will be held responsible for any activity that occurs under your Account

Guidelines, Fees, Rights and Remedies

Permitted Use of the Service

Creating an Account is free. However, Neuromotion may charge for certain features of the Service. Should you elect to purchase or subscribe to such features, as applicable, you agree to pay all applicable fees in connection with such features. Neuromotion cannot be responsible for the performance of its payment processor, who has its own separate terms and conditions.

You are responsible for any fees charged by your internet service provider or mobile carrier for using the Service, including, but not limited to data transfer fees and text message rates.

You will be held solely responsible for your conduct on and use of the Service. You agree that you will not (and may not allow your child or any third party to) use or attempt to use this Service for any purpose other than as described herein. You may not (and may not allow your child or any third party to) use or attempt to use this Service to upload, download, post, submit, or otherwise distribute or facilitate distribution of content on or through the Service for any purpose that:

  • infringes any patent, trademark, trade secret, copyright, right of publicity, or other right of any other person or entity, or violates any law or contract;
  • is any way unlawful or prohibited, or that is harmful, threatening, abusive, harassing, deceptive, fraudulent, offensive, obscene, profane, or otherwise destructive to anyone or their privacy or property;
  • transmits any unauthorized or unsolicited advertisements, solicitations, schemes, spam, flooding, or other unsolicited spam or bulk e-mail (including without limited postings to third-party social media services which are linked to the Service) or unsolicited commercial communications;
  • transmits any harmful or disabling computer codes, files, programs, or viruses;
  • harvests email addresses or personally identifiable information from Neuromotion;
  • interferes with our network services or the proper working of the Service or activities conducted on the Service;
  • uses manual or automated software or other processes to “crawl,” “spider,” index, or in any non-transitory manner store or cache information obtained from any page of the Service;
  • attempts to gain unauthorized access to our Service including bypassing measures we may use to prevent or restrict access to the Service (or other accounts, computer systems, or networks connected to the Service);
  • suggests an express or implied affiliation with Neuromotion (without the express written permission of Neuromotion) or that impersonates any person or entity including an employee or representative of Neuromotion; or
  • impairs or limits our ability to operate this Service or any other person’s ability to access and use this Service.

Neuromotion reserves the right at all times and for any reason or for no reason at all, in its sole discretion and without notice to you, to deny your or your child’s access to and use of this Service.

Fees

Prices and availability of the Service are subject to change without notice. Posted prices do not include taxes, tariffs, levies, duties, or charges for shipping and handling. You agree that you are responsible for all charges incurred in connection with any purchase of our Service, including, without limitation, all taxes, tariffs, levies, duties, shipping, handling, and processing charges or other fees.

Terms of payment are within our sole discretion and payment must be received by Neuromotion before our acceptance of an order. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete; (ii) you are duly authorized to use such credit card for the purchase; (iii) charges incurred by you will be honored by your credit card company; and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.

Intellectual Property Rights

We or our licensors own and retain all proprietary rights in the Service, including software, text, visual, and audio content and Neuromotion’s trademarks, logos, and brand elements. We reserve all rights not expressly granted to you. The Service or any portion of the Service may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Neuromotion, unless it is in the public domain. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Neuromotion without express written consent. You may not use any meta tags or any other “hidden text” utilizing Neuromotion’s name or trademarks without the express written consent of Neuromotion. You may not (directly or indirectly) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive source code or underlying ideas or algorithms of any part of the Service, or modify, translate, or otherwise create derivative works of any part of the Service. Any modification of content, or any portion thereof, or use of the content for any other purpose constitutes an infringement of trademark or other proprietary rights of Neuromotion or third parties, and any unauthorized use terminates the permission to use the Service granted by Neuromotion.

All content included on this Service, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Neuromotion or its content/software suppliers and is protected by United States and international copyright laws. The compilation of all content on this site is the exclusive property of Neuromotion and is protected by United States and international copyright laws. All software used on this site is the property of Neuromotion or its software suppliers and is protected by United States and international copyright laws.

General Information

Linking to Third Party Websites

For your convenience, the Service may provide links to products or services, including payment processing services offered on other websites or applications. Unless expressly stated otherwise, Neuromotion does not endorse, approve, sponsor, or control, and we are not in any way responsible for, any of the content, services, calculations, information, products, or materials available at or through any websites to which this Service may provide a link. By using the Service, you acknowledge and agree that Neuromotion will not be responsible or liable to you or any other person for any damages or claims that might result from your use of such content, services, calculation, information, products, or materials. You should carefully review each website’s privacy statements and conditions of use to understand your rights and responsibilities.

Indemnification

You agree to indemnify and hold Neuromotion, its parent, subsidiaries, affiliates, directors, officers, agents, and other partners and employees, harmless from and against any and all claims, damages, obligations, losses, liabilities, costs, or debt, including but not limited to reasonable attorneys’ fees, made by any third party due to or arising out of your account, use of the Service, or violation of the Terms. This defense and indemnification obligation will survive these Terms and your use of the Service.

Disclaimer & Limitation of Liability

AS NOTED ABOVE, NEUROMOTION IS NOT A LICENSED MENTAL HEALTH CARE PROVIDER AND THE SERVICE SHOULD NOT BE USED AS A REPLACEMENT FOR QUALIFIED MENTAL HEALTH OR OTHER MEDICAL CARE. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, NEUROMOTION MAKES NO FURTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. NEUROMOTION EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES AS TO THE CONDITION, MERCHANTABILITY, NON-INFRINGEMENT, DESIGN, OPERATION, OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICE. WE MAKE NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE, AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SERVICE OR ANY OTHER SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION. WE DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR-FREE, BUG-FREE, OR FREE FROM DEFECTS, THAT LOSS OF DATA WILL NOT OCCUR, OR THAT THE SERVICE ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS, OR OTHER HARMFUL ITEMS. FOR AVOIDANCE OF DOUBT, THE DISCLAIMERS SET FORTH HEREIN DO NOT LIMIT ANY COVENANT, REPRESENTATION, OR WARRANTY MADE BY NEUROMOTION IN THIS AGREEMENT. IF REQUESTED IN WRITING, WE CAN HELP YOU ACCESS THE HEARTRATE MONITOR PRODUCT WARRANTY INFORMATION WHICH MAY BE AVAILABLE TO YOU BY THE HEARTRATE MONITOR MANUFACTURER.

YOU AGREE THAT UNDER NO CIRCUMSTANCES WILL NEUROMOTION BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICE, EVEN IF PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF NEUROMOTION TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THE SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, EXCEED $500.00.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

While we strive to protect your information using reasonable security measures in accordance with our Privacy Policy, Neuromotion cannot be liable for the privacy of personal information stored on Neuromotion’s equipment, transmitted over networks accessed by the Service, or otherwise connected with your use of the Service.

Termination

Neuromotion may terminate or suspend your access to all or part of the Service, for any reason, including without limitation your breach of these Terms. In the event these Terms are terminated, the representations and warranties, indemnities, and limitations of liabilities set forth in these Terms will survive termination.

Jurisdiction & Severability

Neuromotion operates the Service from its offices within the United States. The Service is designed for Users within the United States, and Neuromotion makes no representations that content and materials on the Service are legal or appropriate for use from outside the United States. If you choose to access the Service from other locations, you do so at your own risk and are responsible for compliance with any and all local laws. You may not use the Service in violation of United States export laws and regulations.

These Terms are not assignable, transferable, or sublicensable by you except with Neuromotion’s prior written consent. Neuromotion may assign, transfer, or delegate any of its rights and obligations hereunder without consent.

Any claim or cause of action you have with respect to use of the Service must be commenced within one (1) year after the claim arises. In any action or proceeding to enforce rights under the Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.

If any provision of these Terms is deemed void, unlawful, or otherwise unenforceable for any reason, that provision will be severed from these Terms and the remaining provisions of these Terms will remain in force. These Terms constitute the entire agreement between you and Neuromotion concerning your use of the Service.

Our failure to exercise or enforce any of the Terms shall not constitute a waiver of our right to exercise or enforce the Terms as to the same or another instance. We shall not be deemed to have waived any of our rights or remedies unless such waiver is in writing and signed by an officer of Neuromotion.

International shipments

Neuromotion has partnered with Passport Shipping for shipments to destinations outside the United States. Please see the terms here.

Other Terms

When you use the Service, you consent to communicating with us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You understand if you do not provide us with, and maintain in your account profile, your current and active email address, we may not be able to contact you.

Disputes

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS.

Applicable Law

You and Neuromotion agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of the Terms or your use of, or access to, the Service will be resolved in accordance with the provisions set forth in this Section, Disputes.

Neuromotion and you agree that the Terms are governed by the Federal Arbitration Act (“FAA”) and applicable federal law, including, but not limited to, determinations of arbitrability. Without limiting the general applicability of federal law to the Terms (including, but not limited to, any and all determinations of arbitrability as provided for in the Section Dispute Resolution and Arbitration, to these Terms) and only to the extent state law may apply to the Terms, Neuromotion and you agree the laws of the state of Massachusetts, without regard to principles of conflict of laws, will govern these Terms. Foreign laws do not apply.

Legal notices shall be served on Neuromotion’s national registered agent (in the case of Neuromotion) or your email address on file with us (in your case). Notice by us to you shall be deemed given within twenty-four (24) hours after the email is sent. Alternatively, we may give you legal notice by mail to any physical address you have on file with us. In such case, notice shall be deemed given three (3) days after the date of mailing, regardless of whether any such notice is returned to us. It is your responsibility to keep your contact information updated.

You and Neuromotion each agree that any and all disputes or claims that have arisen or may arise between you and Neuromotion relating in any way to or arising out of the Terms or your use of or access to the Service, shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The FAA governs the interpretation and enforcement of this Agreement to Arbitrate.

In order to ensure the availability of witnesses, unless otherwise prohibited by law, arbitration will be held in Suffolk County, Massachusetts. In all cases, arbitration will be held in accordance with this Section, Disputes. Subject to this Section, Disputes, and to the extent permissible under the Terms, any court proceedings must be initiated in the state or federal courts of the Commonwealth of Massachusetts.

PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS AND NON-INDIVIDUALIZED RELIEF (THE “CLASS ACTION WAIVER”)

YOU AND NEUROMOTION AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND NEUROMOTION AGREE OTHERWISE IN A SEPARATE WRITING, THE ARBITRATOR MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER NEUROMOTION USERS. IF A COURT DECIDES THAT APPLICABLE LAW PRECLUDES ENFORCEMENT OF ANY OF THIS PARAGRAPH’S PROHIBITIONS ON CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTIONS OR PROCEEDINGS AS TO ANY CLAIM, THEN THAT CLAIM (AND ONLY THAT CLAIM) MUST BE SEVERED FROM THE ARBITRATION AND RESOLVED IN COURT, SUBJECT TO YOUR AND NEUROMOTION’S RIGHT TO APPEAL THE COURT’S DECISIONS. ALL OTHER CLAIMS WILL BE ARBITRATED.

WAIVER OF JURY TRIAL

IN ALL EVENTS, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THESE TERMS OR YOUR USE OF OR ACCESS TO THE SERVICE. THE PARTIES FURTHER AGREE THAT, IF AND TO THE EXTENT THIS AGREEMENT TO ARBITRATE DOES NOT APPLY TO ANY CLAIM, THAT CLAIM WILL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.

Arbitration Procedures

Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should also apply the Terms as a court would. All issues are for the arbitrator to decide, except that issues relating to the interpretation and enforceability of the CLASS ACTION WAIVER will be resolved by a court of competent jurisdiction. Other than issues related to the CLASS ACTION WAIVER, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute arising out of or relating to the interpretation, validity, applicability, enforceability, or formation of this Agreement to Arbitrate, any part of it, or of the Terms including, but not limited to, any claim that all or any part of this Agreement to Arbitrate or the Terms are void or voidable. The FAA and federal
arbitration law apply to this Agreement to Arbitrate.

  • Informal Dispute Resolution. You agree that prior to submitting any dispute or claim to arbitration for resolution, you and we agree to make a good faith effort to resolve it informally, including having at least one telephone conversation between you personally and us. To initiate this good faith effort to informally resolve a dispute, you agree to notify us in writing at Neuromotion, Inc., Attn: Compliance Officer, 186 Lincoln Street, 6th Floor Boston, MA 02111, of the nature of this dispute, the basis for your claims, and the resolution that you are seeking, including any monetary amount, with as much detail as you can provide so that we can gain sufficient understanding of the dispute. During the 60 days from receipt of this notice, you agree to engage in good faith efforts to resolve the dispute, including personally participating in a telephone call with us. You may have a lawyer attend the call with you if you wish. If the dispute is not resolved within those 60 days (which can be extended by agreement of the parties), you or we may commence arbitration to resolve the dispute consistent with the process set forth below. Compliance with and completion of this informal dispute resolution process is a condition precedent to filing an arbitration. You and we agree to toll the statute of limitations and any filing fee deadlines while the parties engage in this informal dispute resolution process. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration. We will send any dispute related notice to you at the contact information we have for you. If, for some reason, the dispute is not satisfactorily resolved within thirty (30) days after receipt, any further dispute resolution will occur according to the provisions below. Engaging in this informal dispute resolution process is a requirement that must be fulfilled before commencing a formal dispute resolution proceeding, such as an arbitration or small claims court proceeding.
  • Arbitration with AAA. If we are unable to resolve the dispute through the mandatory informal dispute resolution process described herein, and except as set forth below, you and we agree that we will resolve any controversies, claims, counterclaims, or other disputes between you and us or you and a third-party agent of ours (each a “Claim”) through binding and final arbitration, instead of through court proceedings, in accordance with the Consumer Arbitration Rules of the American Arbitration Association (“AAA Rules”)(as applicable), as modified by this Agreement to Arbitrate. The AAA Supplementary Rules for Class Arbitrations will not apply. This Agreement to Arbitrate applies to any existing or future Claims that you have not individually filed in a court of law prior to the date you agreed to these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. The arbitration will be heard and determined by a single arbitrator. The arbitrator will decide the substance of all claims in accordance with the laws of the Commonwealth of Massachusetts, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users, but is bound by rulings in prior arbitrations involving the same User to the extent required by applicable law. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. You and we agree that the arbitration proceedings will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs, or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration, by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies, or as specifically permitted by state law.
  • Arbitration Initiation. If you or Neuromotion are unable to resolve any Claims informally, you or Neuromotion may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s website at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must send a copy of the completed form to the opposing party. You may send a copy to Neuromotion at the following address: Attn: Legal Department, 186 Lincoln Street, 6th Floor Boston, MA 02111. In the event Neuromotion initiates arbitration against you, it will send a copy of the completed form to any physical address we have on file associated with your account (or your email address if no physical address is on file). Any party to the arbitration may, at any time more than ten (10) days before arbitration, serve an offer of compromise in writing upon any other party to the action.
  • Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules, unless otherwise stated in this Agreement to Arbitrate. If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.

Availability of Other Forms of Relief

This Agreement to Arbitrate does not preclude either party from seeking action by federal, state, or local government agencies. In addition, you and we retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions and any such request shall not be deemed incompatible with this Agreement to Arbitrate, nor a waiver of the right to have disputes submitted to arbitration as provided in this Agreement to Arbitrate.

Severability

With the exception of any of the provisions in the CLASS ACTION WAIVER, if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this section shall continue in full force and effect. No waiver of any provision of this Agreement to Arbitrate will be effective or enforceable unless recorded in writing and signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of these Terms. This Agreement to Arbitrate will survive the termination of your relationship with us.

Mass Arbitration Process Requirements

If twenty-five (25) or more similar claims are asserted against us by the same or coordinated counsel or are otherwise coordinated (and your claim is one such claim), you understand and agree that the resolution of your dispute might be delayed. You also agree to the following process and application of the AAA Multiple Consumer Case Filing Fee Schedule and Supplementary Rules: Counsel for the claimants and our counsel shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The remaining cases shall not be filed or deemed filed in arbitration, nor shall any AAA fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of a staged process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, the parties shall participate in a global mediation session before a retired state or federal court judge, and we will pay the mediator’s fee. If the parties are unable to resolve the remaining matters through mediation at this time, then each side shall select twenty (20) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. (If there are fewer than forty (40) claims remaining, all shall proceed.) The remaining cases shall not be filed or deemed filed in arbitration, nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a staged process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process, unless the parties agree otherwise. If the parties are unable to resolve the remaining cases after the conclusion of the forty (40) proceedings, the parties shall participate in another global mediation session before a retired state or federal court judge, and we will pay the mediator’s fee. If the parties are unable to resolve the remaining matters in mediation at this time, this staged process shall continue with one hundred (100) cases proceeding at one time that are selected randomly or by the AAA in staged sets, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. Between staged sets of proceedings, we agree to participate in a global mediation session should your counsel request it in an effort to resolve all remaining claims. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this section regarding “Disputes” from the time the first cases are selected for a bellwether process until the time your case is selected, withdrawn, or otherwise resolved. A court of competent jurisdiction shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against us. Should a court of competent jurisdiction decline to enforce these “Mass Arbitration Process Requirements,” you and we agree that you and our counsel shall engage in good faith with the assistance of a Process Arbitrator to devise and implement procedures that ensure that arbitration remains efficient and cost-effective for all parties. Either party may engage with the AAA to address reductions in arbitration fees.

Opt-Out Procedure

If you are a new user of our Service, you can choose to reject this Agreement to Arbitrate by notifying us in writing that you opt out (“Opt-Out Notice”). Your Opt-Out Notice must be postmarked no later than thirty (30) days after the date you accept the Terms for the first time. You must mail your Opt-Out Notice to: Attn: Legal Department, 186 Lincoln Street, 6th Floor Boston, MA 02111.

Your Opt-Out Notice should state that you opt out of this Agreement to Arbitrate and provide your name, address (including street number and address, city, state, and zip code), phone number, and the email address(es) used to login to your account(s) to which the opt out applies. You must sign and date the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Terms will continue to apply. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.

Future Amendments to Agreement to Arbitrate

Notwithstanding any provision in the Terms to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than a change to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding between you and Neuromotion prior to the effective date of the change. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate by posting the amended terms on our Service at least thirty (30) days before the effective date of the amendments and by sending notice via email to your email address on file with us. If you do not agree to the amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.