1. INTRODUCTION

1.1. These terms and conditions (the “Terms”) constitute a legally binding agreement between you and us regarding your use of the App, our Website and any text, images, videos, audio, logos and photographs that are incorporated into and form part of the App or are made available via the Website (the “App Content”).

1.2. Please read these Terms carefully. You acknowledge and agree that by installing the App, you signify that you have read, understood, and agree to be bound by these Terms. If you do not accept these Terms, you are not permitted to install or use our App.

1.3. Any terms you have with your respective mobile network provider (“Mobile Provider”) continue to apply and you may be charged by the Mobile Provider for access to network connection services for the duration of the connection while accessing our App or Website and any third party charges as may from time to time arise. You will be solely responsible for any costs and other charges or expenses charged by your Mobile Provider, internet service provider, network operator and any other third party provider in relation to your internet service, your mobile service and any use of our App including the downloading of any available App Content. In the event you are not the bill payer for the device being used to access our App, you will be assumed to have obtained permission from the relevant bill payer for downloading and using our App.

1.4. If you download our App onto any device not owned by you, you must have the owner’s permission to do so. You will be responsible for complying with these Terms, whether or not you own the device.

1.5. You must be sixteen years of age or older in order to download and use our App.

1.6. Any words following the terms including, include, in particular, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. YOUR PRIVACY

2.1. Clementine respects your privacy. We have a privacy policy which you can access here (the “Privacy Policy”).

2.2. Any personal data we collect through your use of our App and Website will only be used in accordance with our Privacy Policy.

2.3. Please be aware that internet transmissions are never completely private or secure and that any message or information you send using our App or our Website may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.

2.4. By using our App and Website, you agree to us collecting and using technical information about the devices you use our App and Website on and related software, hardware and peripherals to improve our products.

3. TECHNICAL REQUIREMENTS

3.1. In order to download and install the App, and to access its functionality and the App Content you will need to have a device with functioning internet access and the latest iOS or Android software. If your device does not comply with these requirements, you may not be able to access some or all of the App and/or App Content.

4. THE CLEMENTINE APP

4.1. In order to access the functionality in the App, you will be required to register for and create an account (your “Account”). You will need to submit your full name and email address and create a password. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your device.

4.2. Clementine offers three levels of access to the App:

4.2.1. Trial Version: if you have not held an Account with Clementine before, you will be offered a Trial Version which will give you full access to all Clementine features for 7 days, at the end of which you will be automatically put on to the Free Version of the App.

4.2.2. Free Version: this gives you access to some of the App Content, including a selection of hypnotherapy sessions and mantras and access to the Clementine blog; and

4.2.3. Subscription Version: this gives you access to everything in the Free Version as well as premium content, including additional hypnotherapy sessions and mantras for a subscription fee (the “Fee”). If at any point you decide to upgrade to the Subscription Version, we will give you another 7 days free from the date you sign up for the Subscription Version before we take the first payment.

4.3. You can find out more about what is included under each membership type and the Fees involved by visiting our Website. You can manage or cancel your membership subscription at any time through the App Store, Google Play Store, or, if you purchased the app via Stripe, by contacting us directly at help@clementineapp.co.uk.

4.4. If you decide to sign up for the Subscription Version you can choose whether you pay the Fees on a monthly or annual basis. You can find out more information about this on our Website. Subject at all times to any statutory rights you may have, any advance payments are non-refundable.

4.5. From time to time we may run additional promotions, competitions and introductory offers for limited periods of time. We will notify you of any additional terms and conditions which may be applicable.

4.6. Additional terms may also apply if you choose to make a purchase through our Website – we will let you know what these are at the time.

5. AVAILABILITY

5.1. We will use reasonable endeavours to ensure that our App, Website and App Content are available for streaming, download and use at all times. However, our App, Website and App Content are provided over the internet and mobile networks and so their operation and availability may be affected by factors outside of our control at any time for any reason. We do not guarantee that use of or access to our App, Website or App Content will always be available and/or uninterrupted.

6. RESTRICTIONS

6.1. Unless you have requested and received our prior written consent or unless expressly permitted in these Terms, you must not:

6.1.1. copy our App or App Content except as part of the normal use of our App or Website or where it is necessary for the purpose of back-up or operational security;

6.1.2. modify or translate our App or App Content in whole or in part, or combine or merge our App or App Content with any other object code or program;

6.1.3. reverse engineer, decompile, disassemble, reduce the object code of our App, Website or App Content to source code form or create (or attempt to create) derivative works based on the whole or any part of our App or App Content, except to the extent permitted by applicable law;

6.1.4. distribute, sub-license, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer our App, Website or App Content or your right to use our App, Website or App Content;

6.1.5. remove, modify, block, disable, obscure or impair any copyright, trademark, or other proprietary notices, material or advertising belonging to us, our licensors or other third parties contained within our App, Website or App Content; or

6.1.6. use our App, Website or App Content in any manner not expressly authorised by these Terms.

7. ACCEPTABLE USE

7.1. You must:

7.1.1. not use our App, Website or App Content in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms, or act fraudulently or maliciously (for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into our App, Website or App Content or into any operating system);

7.1.2. only access the App, Website and App Content (including hypnotherapy sessions) when it is appropriate and reasonable to do so and not, for example, when driving, operating heavy machinery or in any other situation which might put you or others at risk;

7.1.3. only use the sleep sessions when you are going to sleep or otherwise in a relaxation setting;

7.1.4. not infringe any rights (including intellectual property rights) belonging to us or any third party in relation to your use of our App, Website or App Content;

7.1.5. not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of our App, Website or App Content;

7.1.6. not use our App, Website or App Content in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;

7.1.7. comply with any applicable third party terms and conditions in respect of your use of our App, Website or App Content; and

7.1.8. not collect or harvest any information or data from any service or our systems or attempt to decipher any transmissions to or from our servers.

8. APP CONTENT

8.1. The App Content (as defined in section 1.1) may include trademarks or copyright material owned by us or third parties. The App Content includes the text, images, videos, audio, logos, and photographs that are incorporated into and form part of our App and Website. The term ‘App Content’ also includes any part or copy of any of the App Content as well as any derivative work based on or including any of the App Content. The App Content may only be used as part of our App or Website and may not be used independently.

8.2. App Content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose.

9. MEDICAL INFORMATION

9.1. The App and App Content are provided for general information purposes only and are not intended to be a substitute for professional medical advice based on your own individual circumstances. We do not guarantee that your use of the App Content will lead to a particular outcome or provide any particular physical or mental benefit, and in circumstances where you have a medical condition we strongly encourage you to consult a healthcare professional.

9.2. Do not use hypnotherapy if you have psychosis or certain types of personality disorder, as it could make your condition worse. Always check with your doctor first if you have (or think you might have) a personality disorder.

9.3. If you use any App Content that involves movement, you must ensure that you are in adequate physical health to participate in those activities. If you have any concerns you should consult your doctor or other healthcare professional before embarking on any exercise routine, particularly if you have any underlying health conditions.

10. INTELLECTUAL PROPERTY RIGHTS

10.1. All intellectual property rights in our App, Website and App Content and related documentation throughout the world belong to us and our licensors and the rights in our App, Website and App Content are licensed (not sold) to you. You have no intellectual property rights in, or to, our App, Website, App Content or related documentation other than the right to use them in accordance with these Terms.

11. ADVERTISING AND MONETISATION

11.1. You acknowledge that our App, Website and the App Content may be supported by advertising revenues and we may place advertising, promotions or sponsored content on our App or Website or on, about, or in conjunction with the App Content. We will always identify such promotional or advertising content.

12. CHANGES TO OUR APP

12.1. From time to time we may automatically update our App to improve performance, enhance functionality, reflect changes to the operating system or address security issues. If you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using our App.

13. LIABILITY

13.1. Subject to section 13.5, if we fail to comply with these Terms we are responsible for loss or damage you suffer that is a foreseeable result of our breaking these Terms or our failing to use reasonable care and skill, but subject to section 13.5, we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you accepted these Terms, both we and you knew it might happen (“Foreseeable Losses”).

13.2. Subject to section 13.5, if defective digital content that we have supplied damages a device or digital content belonging to you, we will either repair the damage or pay you compensation. However, we will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.

13.3. Subject to section 13.5, we limit our aggregate liability for Foreseeable Losses, arising out of or in connection with these Terms and / or your use of the App or Website, to you in respect of all events occurring in any calendar year, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, to the annual Fee for the Subscription Version as set out on our Website from time to time.

13.4. Subject to section 13.5, circumstances giving rise to a loss or damage which is not foreseeable includes but shall not be limited to:

13.4.1. any use of our App, Website or App Content in a manner that we do not authorise;

13.4.2. our ending, suspending or restricting use of our App, Website or App Content in accordance with these Terms;

13.4.3. any loss or damage caused by us in circumstances where there is no breach of contractual obligation or legal duty owed to you by us;

13.4.4. any loss or damage (including to any device or content belonging to you) caused by us to the extent that such loss or damage results from your negligence, your failure to follow our reasonable instructions or any other breach of these Terms (or any other contract you have in place with us), unless we were in breach of a legal obligation or duty of care owed to you by us and that breach is the substantial cause of the loss or damage;

13.4.5. any loss or damage caused by any error, bugs or viruses arising in your use of our App, Website or App Content that are not directly caused by or attributable to our App, Website or App Content, or any incompatibility of our App, Website or App Content with any other software, hardware or material on your device; and

13.4.6. any breach of sections 6 or 8 by you.

13.5. Nothing in the Terms excludes or limits our liability for death or personal injury arising from our negligence, or our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited under English law. The App Content clearly highlights those activities that you should not undertake or take extreme caution when undertaking while using the App Content and you accept full responsibility for any consequences arising from using the App Content while performing such activities.

13.6. Our App, which is available on both the Apple App Store, and the Google Play Store, is controlled and offered by us from our facilities in the United Kingdom. The use and distribution of our App via the relevant app store is governed by the relevant app store’s own rules, with which we must both comply. In the event of a conflict between these Terms and the terms of the app store that you downloaded our App from, the app store’s terms shall take priority.

14. CHANGES TO THESE TERMS

14.1. These Terms may only be modified with our prior written consent. We may alter or amend these Terms, including introducing new terms, that are the result of a change in applicable law or our business, necessary for the provision of our App, Website or App Content, or the result of any improvements to our App, Website or App Content.

14.2. If we make any changes to these Terms, we will give thirty (30) days’ prior written notice to you either by email or within the App.

15. TERMINATION

15.1. These Terms apply from when you install the App and are deemed to accept these Terms pursuant to section 1.2 (the “Effective Date”) and will remain in full force and effect while you use our App until terminated in accordance with this section 15.

15.2. We may terminate these Terms and terminate or suspend your use of our App, Website or App Content immediately by written notice to you if:

15.2.1. we consider that you have used our App, Website or App Content in violation of these Terms;

15.2.2. we, at our sole discretion, decide to withdraw our App, Website or App Content (whether in whole or in part);

15.2.3. we have a legal or regulatory obligation imposed on us, which impacts our ability to provide our App, Website or App Content; or

15.2.4. for any other reason provided that we have given you thirty (30) days’ written notice by email or via an electronic communication within our App.

15.3. We may discontinue licensing any of the App Content at any time in our sole discretion.

15.4. You can terminate these Terms by ceasing to use our App and deleting or uninstalling it from your device.

15.5. Upon termination for any reason:

15.5.1. all rights granted to you under these Terms cease (however, any liabilities incurred by you under these Terms prior shall survive any such termination);

15.5.2. you must cease all activities authorised by these Terms; and

15.5.3. you must delete or remove our App from your device.

16. THIRD PARTIES

16.1. You acknowledge that our App and Website may contain links to third party websites (whether by way of advertisements or otherwise) that are not owned or controlled by us. Such links are provided for your reference and convenience only. We do not control such websites and are not responsible for the contents or your use of them, and as a result we do not accept responsibility for the availability, suitability, reliability or content of such third party websites. Our inclusion of any such hyperlinks in our App or on our Website does not imply any endorsement of the material or the views expressed within them.

16.2. In addition to these Terms, you also agree as follows:

16.2.1. you acknowledge that these Terms are between Clementine and you only, and not with the third party manufacturer or provider of your device or operating system, such as Apple or Android (the “Manufacturer”);

16.2.2. the licence granted to you to use our App is limited to a non-exclusive, revocable, non-transferable licence to use our App on the mobile operating system product that you own or control as part of your device;

16.2.3. you acknowledge that the Manufacturer has no obligation whatsoever to furnish any maintenance and support services with respect to the App;

16.2.4. in the event of any failure of our App to conform to any applicable warranty, you may notify the Manufacturer, and the Manufacturer will refund the purchase price (if any) for the App to you and, to the maximum extent permitted by applicable law, the Manufacturer will have no other warranty obligation whatsoever with respect to the App;

16.2.5. you acknowledge that Clementine, not the Manufacturer, is responsible for addressing any claims of yours or any third party relating to the App;

16.2.6. you acknowledge that, in the event of any third party claim that our App or your use of our App infringes that third party’s intellectual property rights, the Manufacturer will not be responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim;

16.2.7. you represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country and you are not listed on any U.S. Government list of prohibited or restricted parties; and

16.2.8. you acknowledge and agree that the Manufacturer, and the Manufacturer’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, the Manufacturer will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.

17. GENERAL

17.1. Subject to section 16.2.8, these Terms do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to allow anyone other than you or us to enforce any term of these Terms or of the Privacy Policy.

17.2. Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

17.3. These Terms are governed by English law (including non-contractual disputes or claims) and legal proceedings in respect of these Terms and our App shall be dealt with exclusively by the English courts.

17.4. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the relevant provision shall be deemed modified to the minimum extent necessary to make it valid, and the invalidity of such provision will not affect the validity of the remaining provisions of the Terms and Conditions which will remain in full force and effect.

17.5. Without prejudice to any other rights or remedies that we may have, you acknowledge and agree that damages alone would not be an adequate remedy for any breach of these Terms by you. Accordingly, we shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of these Terms.