DATED: NOVEMBER 5, 2010
1. BINDING EFFECT
Your access and/or use of the Mindflash Technologies, Inc. (“Mindflash”) web site located at www.mindflash.com (the “Site”) or any products, software (including the Software), or services provided by Mindflash (all of the foregoing, collectively, the “Services”) is subject to the terms of a legal agreement between you and Mindflash. Unless otherwise agreed in writing with Mindflash, your agreement with Mindflash will always include the terms and conditions set forth in this document (these “Terms”). In the event that you complete the online registration process located at the Site, your use of the Site and Services and any other products, software, or services provided by Mindflash will be governed by the Subscriber Terms of Service of Mindflash Technologies, Inc. (the “Terms of Service”) for the period during which you have a subscription with Mindflash, as described in such Terms of Service. A copy of the Terms of Service can be found by clicking here. Your agreement with Mindflash also will include any additional terms and conditions which Mindflash may include in agreements or legal notices applicable to the Site, the Software or any other of the Services. All such additional term and conditions will be deemed to be incorporated in and made a part of these Terms. These Terms, including without limitation any updates, revisions, or other modifications to the same, form a legally binding agreement between you and Mindflash in relation to your use of the Services. It is your responsibility to review these Terms carefully and frequently. Your use of the Service is expressly conditioned on your acceptance of these Terms and you are bound by these Terms from the point that you commence using the Service. BY USING THE SERVICES, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND LEGALLY CAPABLE OF FORMING A BINDING CONTRACT. You may not use the Services if you are a person barred from using any portion of the Services under the laws of the United States or any other applicable jurisdiction, including without limitation the jurisdiction in which you are resident or from which you use the Services or otherwise access the Site.
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 post any updates, revisions, or other modifications to these Terms on the Site, and such updates, revisions, or other modifications will be effective immediately on such posting. By continuing to use the Service 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.
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.
4. 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 use of the Services. 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 solely in connection with and solely during the term of your use of the Services. 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, entitle Mindflash to terminate your use of Services automatically and without notice. 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 use of the Services.
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 use of the Services does not confer upon you any license to use the Mindflash Marks in any manner.
6. 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 © 2010 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.
7. 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 the Services, including, without limitation, the account of any subscriber to Mindflash’s services (such Content, 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. By submitting, posting, displaying, transmitting or otherwise distributing the User Content, you grant Mindflash, its service providers, officers, directors, employees, consultants, agents, and representatives a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, and otherwise unrestricted license to the User Content in connection with the operation of the business of Mindflash, including without limitation, a right to copy, transmit, display (publicly or otherwise), reproduce, edit, translate, transform, and reformat the User Content. You agree that Mindflash may publish or otherwise disclose your name and marks in connection with your use of the Services. 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.
8. 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 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 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
9. 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.
10. NO WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MINDFLASH IS PROVIDING 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 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 SITE, THE SOFTWARE OR THE SERVICES, OR YOUR USE THEREOF WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (B) THE SITE, THE SOFTWARE OR THE SERVICES, OR YOUR USE THEREOF, WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) 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 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 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 SITE, THE SOFTWARE OR THE SERVICES; (B) ANY CONTENT, SOFTWARE, DATA, INFORMATION, OR OTHER MATERIALS DOWNLOADED OR OTHERWISE OBTAINED OR ACCESSED THROUGH 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 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.
11. LIMITED LIABILITY
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 COSTS OR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, MULTIPLE, PUNITIVE OR SPECIAL DAMAGES, DAMAGES FOR LOST PROFITS OR LOST DATA), REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH ANY CLAIM RELATED TO OR IN CONNECTION WITH THESE TERMS, THE SUBJECT MATTER HEREOF, YOUR USE OF THE SITE, THE SOFTWARE 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.
12. 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 use of the Services, your breach or violation of any 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 use of the Services 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.
These Terms will remain in effect and full force until otherwise replaced or revoked by Mindflash. Without limitation to any of its rights hereunder, Mindflash reserves the right to suspend or terminate your use of the Site and/or the Services for any reason or for no reason, including without limitation if Mindflash determines 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 Site or Services to you by Mindflash is, in Mindflash’s opinion, no longer commercially viable. Mindflash shall not be liable to you for any amount in the event of any suspension or termination of your use of the Services under this Section 14.
15. ADDITIONAL PROVISIONS
ANY RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY MINDFLASH. 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 use of and access to the Site and the Services 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.
BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND AGREE TO BE BOUND BY THEM.