SUBSCRIBER TERMS OF SERVICE OF MINDFLASH TECHNOLOGIES, INC.
DATED: September 6, 2011
BY COMPLETING THE ELECTRONIC ACCEPTANCE PROCESS AND SUBMITTING THE MINDFLASH TECHNOLOGIES, INC. (“MINDFLASH”) ONLINE REGISTRATION FORM, (I) THE PERSON DOING SO REPRESENTS THAT HE OR SHE IS AT LEAST 18 YEARS OF AGE AND LEGALLY CAPABLE OF FORMING A BINDING CONTRACT AND THAT HE OR SHE IS AUTHORIZED TO SIGN FOR AND BIND THE CONTRACTING PARTY (“YOU”) AND (II) YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THESE TERMS (AS DEFINED BELOW). THE AGREEMENT HEREUNDER IS BETWEEN YOU AND MINDFLASH, LOCATED AT 2825 EL CAMINO REAL, SUITE 200, PALO ALTO, CA 94306, AS OF THE DATE AND TIME THAT YOU COMPLETE THE ONLINE REGISTRATION PROCESS AT THE SITE (THE “EFFECTIVE DATE”).
1. BINDING EFFECT
Mindflash may, in its sole discretion and without prior notice, (a) update, revise, or otherwise modify these Terms; (b) modify the Site and/or the Services; or (c) discontinue the Site and/or Services, in each case at any time and for any reason. Mindflash will provide you with notification that these Terms have changed through email, by posting on the Site or by such other means as Mindflash may determine in its sole discretion. If you are unwilling or unable to accept and comply with any future updates, revisions, or other modifications to these Terms, you must terminate your Subscription with Mindflash and immediately stop using the Services. By continuing your Subscription after any such updates, revisions, or other modifications, you accept and agree to be bound by these Terms as so updated, revised, or otherwise modified.
Fees. In consideration for your Subscription, you agree to pay Mindflash all subscription fees and charges, and any other fees and charges which Mindflash may now or in the future charge you in connection or associated with your Subscription, and any modifications or additions thereto (collectively, “Subscription Fees”). All Subscription Fees are exclusive of any applicable taxes and other charges of any kind (unless otherwise specifically stated herein) and you are solely responsible for the payment of any such taxes and other charges which may be imposed on your Subscription (other than franchise taxes and taxes based on Mindflash’s income, which shall be paid by Mindflash). You will pay Mindflash all Subscription Fees on a monthly basis (or such other period basis as Mindflash may specify). All Subscription Fees are nonrefundable, except as otherwise expressly stated herein. The Subscription Fees currently in effect can be found on your online user account page.
Mindflash may at any time, in its absolute and sole discretion, modify the Subscription Fees or add new fees or charges to the Subscription Fees. Subject to the terms hereof, any such modifications or additions to the Subscription Fees will apply to the first renewal term of your Subscription following the effective date of such modification or addition (unless the Subscription is terminated as specified herein). Mindflash will provide you with advance notification of any such modifications or additions to the Subscription Fees through email, posting on the Site or by such other means as Mindflash may determine in its sole discretion. If you are unwilling or unable to accept and promptly pay when due any such modifications or additions to the Subscription Fees, you must terminate your Subscription with Mindflash and immediately stop using the Services. By continuing your Subscription after any such modifications or additions to Subscription Fees, you accept and agree to pay all such modifications or additions to the Subscription Fees.
Payment Card. As a part of the registration process and as a condition of activating and continuing your Subscription, you must provide Mindflash with a valid credit card or debit card issued by a card issuer acceptable to Mindflash (such card, together with any other credit cards or debit cards subsequently designated by you and accepted by Mindflash, your “Payment Card”) and pay all Subscription Fees with your Payment Card. Mindflash may seek pre-authorization of your Payment Card account prior to the activation of, and may seek confirmation of authorization of your Payment Card at any time during the term of, your Subscription in order to verify that the Payment Card is valid and/or has the necessary funds or credit available to cover all Subscription Fees due in respect of your Subscription. Pre-authorizations will reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Please contact your card issuer if you have additional questions regarding when an authorization amount will be removed from your statement. You must ensure that your Payment Card has sufficient available credit or funds at all times during the term of your Subscription. You agree to provide Mindflash with updated information concerning your Payment Card upon Mindflash’s request and at any time the information you provided to Mindflash is no longer valid. In the event that you cancel your Payment Card, your Payment Card is terminated, or your Payment Card is otherwise invalid, you shall promptly (and in any event within five (5) days of the start of any renewal term) provide Mindflash with a new valid Payment Card number. You hereby authorize Mindflash, from time to time, to take appropriate steps to determine whether your Payment Card is valid. If any payment of the Subscription Fees due under these Terms is not received by Mindflash from your Payment Card issuer or its agents, you agree to pay all amounts due upon demand by Mindflash. In the event that you do not provide Mindflash with a valid Payment Card number, your Payment Card does not have sufficient credit or funds, your Payment Card is otherwise invalid or you do not pay all Subscription Fees when due, you will and will be deemed to be in violation of these Terms, and Mindflash may, at any time, at its option and in its sole discretion, suspend or terminate your Subscription, and/or pursue all available remedies at law or equity.
Billing. At the start of the initial term of your Subscription, and at the start of each renewal period thereafter (unless your Subscription is terminated in accordance with the terms hereof prior to the beginning of any such renewal period), the Subscription Fees will be billed automatically to your Payment Card. By authorizing Mindflash to charge your Payment Card for the Subscription Fees, you are authorizing Mindflash to automatically continue charging that Payment Card (or any replacement card if the original card is renewed, lost, stolen, or changed for any reason by the card issuer) for all Subscription Fees. You authorize the card issuer to pay any amounts described herein and authorize Mindflash, or any other company that acts as a billing agent for Mindflash, to continue to attempt to charge all due and owing Subscription Fees to your Payment Card account until such amounts are paid in full.
Trial Period. Mindflash may offer you a free trial period during which you can try out a Subscription (a “Trial Period”). If you wish to continue to use the Services, you must provide Mindflash with a valid credit card or debit card issued by a card issuer acceptable to Mindflash. If you do not provide Mindflash with valid credit card or debit card, and any other information as Mindflash may require in order to activate your Subscription, by the end of your Trial Period, Mindflash may terminate your account in accordance with Section 15 below. Mindflash reserves the right to modify, cancel and/or limit any Trial Period offer at any time.
Limited Use Subscription. Mindflash may, in its sole discretion, offer you a month-to-month limited use Subscription for no charge (a “Limited Use Subscription”) if Mindflash determines that your usage of the Subscription is below certain usage thresholds. Such usage thresholds may be found on your online user account page. If Mindflash determines that your Subscription as a Limited Use Subscription, you will be required to comply with these Terms, but will not be required to pay the Subscription Fee. If your usage of the Subscription at any time exceeds the then-current usage thresholds, or if Mindflash decides in its sole discretion that it will no longer offer the Limited Use Subscription to you, Mindflash will provide you with advance notification that your use of the Subscription will be thereafter conditioned on the payment by you of the then-applicable Subscription Fees in accordance with these Terms, through email, posting on the Site or by such other means as Mindflash may determine in its sole discretion. If you are unwilling or unable to continue your Subscription on such terms, you must terminate your Subscription with Mindflash and immediately stop using the Services. By continuing your Subscription after any such notice, you accept and agree to comply with these Terms and to pay all applicable Subscription Fees. Mindflash reserves the right in its sole discretion to modify, cancel and/or limit the Limited Use Subscription, including without limitation the usage thresholds, at any time.
Late Payments. Daily interest shall accrue on any Subscription Fees that are not paid when due at a rate per annum equal to the lesser of (i) eight percent (8%) per year, computed on the basis of a year of 360 days and for the actual number of days elapsed (including the first day but excluding the last day) until payment of all outstanding amounts, or (ii) the maximum rate of interest permitted under applicable law.
Set-Off: You acknowledge and agree that Mindflash is entitled to set off or withhold the amount of all or any part of amounts due or owing under this Agreement or any damages resulting from Mindflash’s breach of this Agreement reasonably proven or awarded (subject to Section 12) against any payments owed by you to Mindflash under this Agreement or otherwise.
Transactions With Other Users: Mindflash allows its users to buy and sell User Content to and from other users through its Site and Services. Mindflash has no control over, and shall have no liability for, the quality, legality, accuracy, or any other aspect of the User Content sold, or the ability of sellers to sell User Content or the ability of buyers to pay. Mindflash does not screen or verify any User Content offered for sale on the Site or the qualifications of any User. Consequently, you should communicate directly with potential transaction partners and use your judgment in making decisions regarding the people with whom you transact through this Site.
Notwithstanding anything else, if you provide User Content to third parties through Mindflash, (a) Mindflash reserves the right to refund the price paid by such third parties to in response to complaints or requests, in Mindflash’s sole discretion and (b) if Mindflash does so, Mindflash will deduct any such refunded amounts from any amounts to be paid to you by Mindflash until Mindflash has fully recovered the refunded amounts.
You may not use anyone else’s account or password at any time without the express permission and consent of the holder of such account or password. Mindflash will not be liable for any losses or damage arising from your failure to comply with these obligations.
5. LICENSE GRANT
Mindflash may make certain (i) content, code, information, data or other materials included on or accessible through the Site (except the User Content, as defined below), such as text, graphics, logs, button icons, images, audio clips, digital downloads, and data compilations (collectively “Site Content”) and (ii) software (including all files and images contained in or generated by such software and accompanying data, and any updates or upgrades to such software, collectively, “Software”), available to you in connection with your Subscription. Mindflash hereby grants you a personal, non-exclusive, non-transferable, limited license to use the Site Content and the Software solely as provided to you by Mindflash as a part of the Services and solely in connection with and solely during the term of your Subscription. The license granted by Mindflash hereunder is non-assignable and any attempted transfer or assignment of such limited license shall, in addition to and not in lieu or limitation of any other remedies available to Mindflash hereunder, automatically terminate your Subscription without further action from Mindflash. At the expiration or earlier termination of your Subscription, all rights to use the Site Content and the Software shall immediately terminate and you shall immediately cease to use the Site Content and the Software in any manner The license granted herein is made subject to the express condition that you may not (i) sell, redistribute, or reproduce the Site Content or the Software, (ii) copy, modify, create a derivative work of, decompile, reverse-engineer, disassemble, or otherwise attempt to extract the source code of the Site Content or the Software or any part thereof (as applicable), (iii) use the Site Content, the Software or the Services to provide any services to third parties (e.g., business process outsourcing or service bureau applications) other than to permit authorized third parties to access User Content as training materials, or (iv) lease, rent, loan, resell, sublicense or otherwise distribute the Site Content and the Software. Some jurisdictions may not enforce contractual restrictions against reverse-engineering of software in certain circumstances and, solely to the extent required, and for the purposes permitted, by the law of such jurisdictions, we will provide you with the source code of the applicable Software upon written notice. The Software which you use may automatically download and install updates that Mindflash releases at its sole discretion from time to time. Such updates are designed to improve, enhance, and further develop your use of the Services. You acknowledge and agree to receive such updates as part of your Subscription.
The Site may contain a number of proprietary trademarks, logos, service marks, slogans and product designations that are owned or controlled by Mindflash or its licensors (the “Mindflash Marks”). Your Subscription does not confer upon you any license to use the Mindflash Marks in any manner other than as expressly specified herein. Mindflash hereby grants you a limited, non-exclusive license to the Mindflash Marks for incidental use only, solely to the extent expressly necessary for you to use the Services in connection with your Subscription. Any such use of the Mindflash Marks, or goodwill received therefrom, shall accrue solely to Mindflash, who shall remain the exclusive and sole owner of the Mindflash Marks. Whenever and wherever you use a Mindflash Mark, you shall print or display the following statement: “The Mindflash mark is used solely by permission of Mindflash Technologies, Inc” and print a registered trademark symbol or trademark symbol, whichever is appropriate in Mindflash’s absolute and sole discretion. You shall provide Mindflash with a copy of all materials bearing any Mindflash Mark. The license granted by Mindflash hereunder is non-assignable and any attempted transfer or assignment of such limited license shall automatically terminate your Subscription without further action from Mindflash. Subscriber shall not remove or destroy any proprietary markings placed upon or contained within the Software (as defined below). At the expiration or earlier termination of your Subscription, all rights to use the Mindflash Marks shall immediately terminate and you shall immediately cease to use in any manner such Mindflash Marks.
7. OWNERSHIP OF SITE CONTENT AND SOFTWARE
You acknowledge and agree that Mindflash or its licensors own all right, title and interest in and to any Site Content and Software, and that such Site Content and Software is protected by United States and international copyright and other intellectual property and proprietary rights laws. All Site Content and Software is Copyright © 2012 Mindflash Technologies, Inc., all rights reserved. Except for the license expressly granted herein, Mindflash does not transfer to you any right, title or interest in or to the Site Content or the Software. Mindflash may use, sell, assign, transfer, and license copies of and rights in the Site Content or the Software to third parties in Mindflash’s sole discretion free from any claim by you.
8. USER CONTENT
You represent and warrant that you hold and will retain any copyright rights and any other proprietary rights in any content, code, information, data or other materials that are submitted, posted, displayed, transmitted, or otherwise distributed on or through the Site or Services by you or otherwise through the use of your passwords and any account you use in connection with your Subscription (the “User Content”). You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use any User Content, and Mindflash shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Content. You hereby grant Mindflash, its service providers, officers, directors, employees, consultants, agents, and representatives a worldwide, royalty-free, and non-exclusive license to to copy, transmit, display, perform, reproduce, edit, translate, transform, reformat and take any other action with respect to the User Content as may be necessary or useful in order to make the User Content available in accordance with your instructions (as indicated by the setting and selections you make via the Site or in connection with using the Service). You agree that Mindflash may publish or otherwise disclose your name and marks in connection with your Subscription. By submitting, posting, displaying, transmitting, or otherwise distributing the User Content, you represent and warrant that you have all the rights, power and authority to grant the above license.
9. PROHIBITED USES
Mindflash does not actively monitor your use of the Services under normal circumstances, nor does it exercise editorial control or review the content of any Web site, electronic mail transmission, newsgroup or other material created or accessible over or through the Site or Services (including, without limitation, any User Content). However, Mindflash may remove, block, filter or restrict by any means any Content (including User Content) that Mindflash believes, in its sole discretion, may be illegal, infringing, libelous, fraudulent, obscene, abusive or harassing, invasive of privacy, inaccurate, misleading, destructive or otherwise offensive or objectionable, may subject Mindflash to liability, or may violate the terms of these Terms and, in the event of such actions by Mindflash, you hereby agree and acknowledge that Mindflash shall have no liability to you or any other person or entity. To ensure that Mindflash provides a high quality experience for you and for other users of the Site and the Services, you agree that Mindflash or its representatives may access your account and records on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third party rights, or other unauthorized uses of the Site and the Services. Mindflash does not intend to disclose the existence or occurrence of such an investigation unless required by applicable law. Mindflash reserves the right to delete any User Content from the Site and Services which violates these Terms, at any time and without notice. Mindflash reserves the right to terminate your Subscription and your use of the Services (including, without limitation, your access to the Site) immediately, with or without notice to you, if Mindflash believes that you have violated any provision of these Terms, furnished Mindflash with false or misleading information, or interfered with use of the Services by others and, in the event of such termination, you hereby agree and acknowledge that Mindflash shall have no liability to you or any other person or entity.
You agree (a) to comply with all applicable local, state, federal, national, foreign and international laws, statutes, regulations, ordinances and rules (including, without limitation, (i) any intellectual property laws or laws pertaining to the proprietary rights of others, (ii) the U.S. Foreign Corrupt trade Practices Act, (iii) the U.S. Export Administration Act or any other applicable export control laws or laws relating to the export of data or software to or from the United States or any other jurisdiction, or (iii) the U.S. International Traffic in Arms Regulations or any other applicable laws, statutes or regulations relating to national security, national defense or traffic in arms), in each case during your use of the Site or Services, and (b) that you are solely responsible and, to the maximum extent permissible by applicable law, shall bear all risk and liability, for the accuracy, completeness, reliability and/or usefulness of (I) any User Content, and (II) all communications sent by you or any other person or entity using your account at the Site.
Prohibited uses of the Site and Services include, but are not limited to the following:
(A) violating or attempting to violate any security features of the Site or Services, or using or attempting to use the Site or Services to violate any security features of a third party site, including without limitation by;
(i) accessing Content not intended for you, or logging onto a server or account that you are not expressly authorized to access;
(ii) attempting to probe, scan, or test the vulnerability of the Site, the Services, or any associated system or network, or to breach security or authentication measures without proper authorization;
(iii) reverse looking-up, tracing or seeking to trace any information on any other user of or visitor to the Site or Services, or any other customer of Mindflash, including any account not owned by you, to its source, or exploit the Site or Services or information made available or offered by or through the Site or Services, in any manner in which the purpose is to reveal or misuse any information, including but not limited to personal identification, other than your own information, as provided by the Site;
(iv) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, submitting to the Site or Services a virus, Trojan horse, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, overloading the Site or Services, or “flooding,” “spamming,” “mail bombing,” or “crashing” the Site or Services;
(v) using the Site or Services to send unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” or any other form of solicitation;
(vi) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Services;
(vii) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Mindflash in providing the Site or Services; provided that some jurisdictions may not enforce contractual restrictions against reverse-engineering of software in certain circumstances and, solely to the extent required, and for the purposes permitted, by the law of such jurisdictions, we will provide you with the source code of the applicable Software upon written notice.
(B) uploading, downloading, submitting, displaying, performing, transmitting, or otherwise distributing or making available any User Content that:
(i) is unlawful, threatening, abusive, harassing, tortious, obscene, defamatory, libelous, invasive of another’s privacy, hateful or racially, ethnically or otherwise objectionable;
(ii) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation;
(iii) degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification;
(iv) advertises or otherwise solicits funds or is a solicitation for goods or services;
(v) infringes any patent, trademark, trade secret, copyright or other intellectual property or proprietary right of any party or to which you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); or
(vi) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(C) harming, or attempting to harm, minors in any way;
(D) impersonating any person or entity or falsely stating or otherwise misrepresenting your affiliation with a person or entity, or forging, making or otherwise using false or misrepresenting message headers, whether in whole or in part, to mask the originator of the message;
(E) using the Site or Services to stalk or otherwise harass another person or to access, use, collect or store, or attempt to access, use, collect or store, personal data about third parties without their knowledge or consent;
(F) reselling, leasing, time-sharing, or otherwise letting other persons access or use the Site or Services or accessing the Site or Services other than in connection with authorized third parties accessing User Content as training materials.
Any restriction or monitoring of a minor’s access to the Site or Services is your sole responsibility. Mindflash intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms or of any applicable laws. Any violation of these Terms or of any applicable laws may subject you to civil and/or criminal liability. You hereby agree and acknowledge that the burden of proving that your use of the Site or the Services, or use of any Content uploaded, downloaded, displayed, performed, transmitted, or otherwise distributed by you does not violate these Terms, any applicable laws or any third party rights rests solely with you
10. COPYRIGHT INFRINGEMENT
Mindflash has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Site or in connection with the Services. Mindflash has adopted a policy that complies with applicable international intellectual property law and regulations (including, in the United States, the Digital Millennium Copyright Act) and that provides for the immediate suspension and/or termination of any user who allegedly has infringed on the rights of Mindflash or of a third party, or otherwise violated any applicable international intellectual property or proprietary rights laws or regulations.
Mindflash’s policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Mindflash to delete, edit, or disable the material in question, you must provide Mindflash with all of the following information: (A) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (B) identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (C) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Mindflash to locate the material; (D) information reasonably sufficient to permit Mindflash to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (E) 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 the law; and (F) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Mindflash’s designated agent at: CopyrightAgent@mindflash.com.
11. NO WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MINDFLASH IS PROVIDING THE SUBSCRIPTION, THE SITE, THE SOFTWARE AND THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MINDFLASH AND ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, VENDORS, SUPPLIERS, LICENSORS, SUCCESSORS AND ASSIGNS, DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY EXPRESS, IMPLIED, STATUTORY, OR OTHER WARRANTIES OF ANY TYPE OR KIND IN CONNECTION WITH THE SUBSCRIPTION, THE SITE, THE SOFTWARE OR THE SERVICES, OR YOUR USE THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, OR NON-INFRINGEMENT. IN PARTICULAR, MINDFLASH DOES NOT REPRESENT OR WARRANT THAT: (A) THE SUBSCRIPTION, THE SITE, THE SOFTWARE OR THE SERVICES, OR YOUR USE THEREOF WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (B) THE SUBSCRIPTION, THE SITE, THE SOFTWARE OR THE SERVICES, OR YOUR USE THEREOF WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) THE SUBSCRIPTION, THE SITE, THE SOFTWARE, THE SERVICES, AND/OR ANY PRODUCTS, SERVICES OR CONTENT AVAILABLE THEREON, OR YOUR USE THEREOF, WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (D) ANY INFORMATION OBTAINED BY YOU IN CONNECTION WITH YOUR SUBSCRIPTION OR AS A RESULT OF YOUR USE OF THE SITE, THE SOFTWARE OR THE SERVICES WILL BE COMPLETE, ACCURATE OR RELIABLE; OR (E) DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SITE, THE SOFTWARE OR THE SERVICES WILL BE CORRECTED. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MINDFLASH OR IN CONNECTION WITH THE SUBSCRIPTION, THE SITE, THE SOFTWARE OR THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOU EXPRESSLY ACKNOWLEDGE THAT (A) YOU ASSUME ALL RESPONSIBILITY FOR ANY AND ALL RISK OF ANY AND ALL DAMAGE OR LOSS FROM THE ACCESS OR USE OF, OR INABILITY TO ACCESS OR USE, THE SUBSCRIPTION, THE SITE, THE SOFTWARE AND/OR THE SERVICES; (B) ANY CONTENT, SOFTWARE, DATA, INFORMATION, OR OTHER MATERIALS DOWNLOADED OR OTHERWISE OBTAINED OR ACCESSED THROUGH THE SUBSCRIPTION, THE SITE, THE SOFTWARE OR THE SERVICES, OR YOUR USE THEREOF, IS DONE AT YOUR ABSOLUTE AND SOLE DISCRETION AND RISK; (C) YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DATA, COMPUTER SYSTEM, NETWORK, OR OTHER DEVICE, INFORMATION TECHNOLOGY SYSTEM, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT, SOFTWARE, DATA, INFORMATION, OR OTHER MATERIALS AND (D) THE SUBSCRIPTION, THE SITE, THE SOFTWARE OR THE SERVICES, OR YOUR USE THEREOF, MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND THAT MINDFLASH SHALL NOT BE LIABLE FOR ANY SUCH LIMITATIONS, DELAYS, OR OTHER PROBLEMS.
12. LIMITED LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MINDFLASH’S AGGREGATE LIABILITY UNDER THIS AGREEMENT (REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION) SHALL BE LIMITED TO $500. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MINDFLASH OR ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, VENDORS, SUPPLIERS, LICENSORS, SUCCESSORS AND ASSIGNS, BE LIABLE, DIRECTLY OR INDIRECTLY, TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, MULTIPLE, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND, OR ANY DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL OR BUSINESS INTERRUPTION, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES, AND WHETHER OR NOT ARISING OUT OF OR IN CONNECTION WITH ANY CLAIM RELATED TO OR IN CONNECTION WITH THESE TERMS, THE SUBJECT MATTER HEREOF, YOUR SUBSCRIPTION OR YOUR ACCESS TO, OR USE OF, THE SITE, THE SOFTWARE AND/OR THE SERVICES. THIS LIMITATION WILL APPLY (A) REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION; AND (B) REGARDLESS OF WHETHER MINDFLASH HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
13. AFFILIATED SITES
To the maximum extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Mindflash and its affiliates, and their respective officers, directors, employees, contractors, agents, vendors, suppliers, licensors, successors and assigns, harmless from and against, and will promptly reimburse them for, any and all claims, losses, liability, damages, settlements, and/or costs of any type, kind, or nature whatsoever (including reasonable attorney fees and costs) arising out of, based on, as a result of, or in any way in connection with your Subscription, your breach or violation of these Terms or any applicable law or regulation, or any claim that the User Content or any other information or data that you provide to Mindflash or use in connection with your Subscription infringes any intellectual property or other proprietary right of any person or entity, including without limitation any access or use, receipt, breach, or infringement by anyone using your account or password.
15. TERM & TERMINATION
These Terms will remain in effect and full force until otherwise replaced or revoked by Mindflash.
Term. The initial term of your Subscription shall be for a period of one (1) month from the Effective Date, unless sooner terminated in accordance with this Section 18. Your Subscription will automatically renew for successive one (1) month renewal terms as long as you have paid the Subscription Fees and other amounts required hereunder in accordance with Section 3 above.
Termination of Subscription. You may terminate your Subscription at any time by visiting your “Account” page on the Site and disabling the auto renew function, in which case the termination shall be effective as of the end of the then-current monthly term. You may also terminate your Subscription by affirmatively rejecting these Terms as modified in accordance with Section 2 and, in such event, the termination will be effective as of the last day of the period for which Subscription Fees have been paid. Mindflash may terminate your Subscription at any time without cause and, in such event, the termination will be effective as of the last day of the period for which Subscription Fees have been paid.
Without limitation to any of its rights hereunder, Mindflash reserves the right to immediately suspend or terminate your Subscription if Mindflash determines in its sole discretion that you have breached or repudiated (or are at risk of breaching or repudiating) any provision of these Terms, if Mindflash is required to do so by law, or if the provision of the Subscription, Site, Software or Services to you by Mindflash is, in Mindflash’s opinion, no longer commercially viable. If Mindflash suspends your account and you fail to remedy the condition underlying such suspension to Mindflash’s satisfaction within thirty (30) days after Mindflash sends you notice of such suspension, your Subscription shall be immediately terminated, without the need for further notice. Mindflash shall not be liable to you for any amount (including, without limitation, any refund of Subscription Fees) in the event of any suspension or termination of your Subscription under this Section 15.
Termination or expiration of your Subscription for any reason shall not release either party from any liabilities or obligations set forth in these Terms that (i) the parties have expressly agreed shall survive any such termination or expiration or (ii) remain to be performed or by their nature would be intended to be applicable following any such termination or expiration. These Terms shall survive the expiration or earlier termination of your Subscription.
In the event of any termination or expiration of your Subscription, all of your data related to your Subscription (including any User Content) may be deleted by Mindflash from any servers or other hardware directly controlled by Mindflash. It is your responsibility to retain copies or backups of any data (including any User Content) related to your Subscription.
It is not the intention of the parties hereto for these Terms to, and these Terms shall not be deemed to, confer a third party beneficiary right of action upon any third party or entity whatsoever including but not limited to any of your learners or customers, and nothing in these Terms will be construed to confer upon any such third party other than the Parties hereto a right of action under these Terms or otherwise.
16. ADDITIONAL PROVISIONS
ANY RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY MINDFLASH.
Unless otherwise specified herein, all notices under these Terms shall be given via email to the email addresses provided by you during your registration process and to firstname.lastname@example.org for Mindflash. Either party may from time to time change its email address for notification purposes by giving the other prior written notice via email of the new address and the date upon which such new address shall become effective.
No remedy conferred on Mindflash by any of the specific provisions of these Terms is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be additional to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. The election of one or more remedies by Mindflash shall not constitute a waiver of the right to pursue other available remedies.
These Terms will be construed in accordance with and governed by the laws of the United States and the State of California, without reference to their rules regarding conflicts of law. You hereby irrevocably consent to the exclusive jurisdiction of the state or federal courts in the county of Santa Clara, California, USA, in all disputes arising out of or related to the use of the Site or the Services. Notwithstanding the foregoing, you acknowledge and agree that Mindflash will be entitled to seek injunctive remedies or an equivalent type of urgent legal relief in any jurisdiction. The Site and the Services are controlled and operated by Mindflash from its offices in the State of California. Mindflash makes no representation that any of the materials or the services to which you have been given access are available or appropriate for use in other locations. Your Subscription and your use of or access to the Site should not be construed as Mindflash’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
If, for whatever reason, a court of competent jurisdiction finds any term or condition in these Terms to be unenforceable in whole or in part, to the extent not found unenforceable such term or condition and all other terms and conditions will remain unaffected and in full force and effect. No waiver of any breach of any provision of these Terms will constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
If the provision of the Services by Mindflash or the performance of any other obligation of Mindflash hereunder is prevented, restricted, or interfered with by reason of fire or other casualty or accident, acts of God, severe weather conditions, strikes or labor disputes, war or other violence, any law, order, proclamation, regulation, ordinance, demand, or requirement of any governmental agency or any other act or condition whatsoever beyond the reasonable control of Mindflash, Mindflash shall be excused from such provision or performance.
Except as specifically authorized, neither party shall have any authority to assume or create obligations on the other party’s behalf. Neither party shall take any action that has the effect of creating the appearance of its having such authority.
You may not assign or delegate any or all of your rights, obligations, and duties under these Terms without the prior written consent of Mindflash, which may be withheld in Mindflash’s sole and absolute discretion. These Terms shall inure to the benefit of and be binding on the heirs, legal representatives, successors, and permitted assigns of the parties.
Headings used herein are for reference purposes only and neither limit nor amplify the terms and conditions herein.
These Terms, together with any external documents expressly referenced herein or incorporated herein by reference and/or hyperlink constitutes the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written communications with respect hereto, all of which are merged herein.
BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND AGREE TO BE BOUND BY THEM.