Effective Date: August 2017
These Terms of Service (“Terms”) govern your use of the websites (collectively and individually, the “Site”) and related products and services, mobile applications, or any content or information provided as part of the Site (collectively, the “Services”), which are owned or operated by Mindmarker, LLC (“Mindmarker”, “we”, “our” or “us”).
These Terms are an agreement between you and Mindmarker with respect to the Services. By accessing the Site or registering for or using the Services, you: (1) acknowledge that you have read and understand these Terms; (2) agree to be bound by them in their entirety, and (3) are entering into a legally binding agreement with us. Our Privacy Policy, available at https://mindmarker.com/privacy-policy, is incorporated by reference into these Terms. Please read these Terms and the Privacy Policy before you access the Site or Services, as these Terms form a binding legal agreement between you and Mindmarker.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SITE OR SERVICES. YOUR USE OF OUR SITE AND SERVICES REQUIRES YOUR ACCEPTANCE OF THESE TERMS AS THEY MAY BE AMENDED FROM TIME TO TIME, INCLUDING THE POLICIES INCORPORATED BY REFERENCE HEREIN, WHICH INCLUDES THE MINDMARKER PRIVACY POLICY.
Changes To The Terms
We may add to, change or remove any part of these Terms, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of these Terms. Such modification shall be effective immediately upon posting at the Site. As your next visit to a Site or use of the Services may be governed by different Terms, we encourage you to look for a new effective date on these Terms when you visit the Site or use the Services. It is your responsibility to check these Terms periodically for changes. If we make any material changes to these Terms, we will endeavor to provide registered users with additional notice of any changes, such as at your e-mail address of record or when you log-in to your account. Your use or continued use of the Site or Services following the posting or notice of any changes to these Terms or any other posted policies shall constitute your acceptance of the changed Terms or policies.Authorized User; Your Responsibility.You may not access or use the Services if you are unable to form a binding, legal agreement with Mindmarker. You affirm that you are over the age of 18 and otherwise have the authority to enter into these Terms. You assume all responsibility for your use of, and access to, the Site or Services. Accounts are for a single user. Any multiple-party use is prohibitted. For example, sharing a login between users and other individuals is prohibited.Personal Information; Your Content; Your Account
3.1. Accuracy. By registering for our Services, you represent and warrant that all information you submit to us is true, accurate, current and complete and that you will promptly notify us in writing if your information changes. We are not responsible for any disputes or claims related to any inaccurate, incomplete, or untimely information provided by you to us.
3.2. Privacy. You may browse the Site without providing us with any personal information; however, to use our Services, you may be required to register with us and submit certain personally identifiable information. You expressly agree that we may collect, disclose, store and otherwise use your information in accordance with the terms of the Mindmarker Privacy Policy, available at https://www.mindmarker.com/privacy-policy/.
3.3 Your Content. As between you and Mindmarker, you own the information, materials, photos, or other content you provide Mindmarker through or in connection with the Services (“Content”). Any Content that you upload or otherwise provide to Mindmarker in connection with the Site or Services may be used by Mindmarker in order to provide and promote the Site, Services or Mindmarker’s business, subject to the Mindmarker Privacy Policy. Notwithstanding the following licenses, you retain all rights to the Content, except as otherwise provided herein or as otherwise provided in any other agreement between you and Mindmarker. Any Content you submit to us is provided at your own risk of loss. You are solely responsible for all Content you share, provide, display, publish, or disseminate to others, whether such action was taken by us or you. By providing Content to us, you represent and warrant that you are entitled to submit it and that it is not confidential and not in violation of any law, contractual restrictions or other third party rights (including any intellectual property rights). Mindmarker may also remove or delete your Content from the Site or Services at any time in its sole discretion.
3.3.1 Manager License. If you are using the manager or administrative version of the Services, you grant to Mindmarker, and all of its subsidiaries, affiliates, successors, and assigns a worldwide, perpetual, royalty-free, fully paid, sublicensable, non-exclusive, and transferable right to publish, reproduce, distribute, modify, adapt, publicly display and otherwise use the Content as reasonably necessary or appropriate to provide the Services.
3.3.2 Personal User License. If you are using the standard user version of the Services, you grant to Mindmarker, and all of its subsidiaries, affiliates, successors, and assigns, a worldwide, perpetual, royalty-free, fully paid, sublicensable, non-exclusive, and transferable right to publish, reproduce, distribute, modify, prepare derivative works of, adapt, publicly display and otherwise use the Content. Such right to use such Content shall survive the termination of these Terms and termination of the Services. You authorize us to use, forward, or post your profile or related information on other sites and services.
3.4 Interactions with Other Users. You are solely responsible for all interactions with other users. Mindmarker may offer various forums which allow you to post comments. Mindmarker may also enable sharing of information by allowing users to post content and information. Pursuant to the license granted by you above, Mindmarker may grant other users of the Site or Services access and share rights to your Content in accordance with these Terms, your settings and the nature of your connection with such other users. Information you share may be seen and used by other users of the Site or Services. Mindmarker cannot guarantee that users of the Site or Services will not use the information that you share on Mindmarker, nor the manner of use. Mindmarker is not responsible for another user’s or other third party’s misappropriation or misuse of your Content or other information. Additionally, Mindmarker is not responsible for the truthfulness, accuracy, authenticity, or completeness of any of the Content or any other information provided by other users or any other third party. You hereby release Mindmarker from all claims, demands, or damages of every kind, known or unknown, in any way connected with (i) any relationship arising between users of the Site or Service, (ii) any dispute between you and another user, or (iii) arising out of any services which originated through the Site or Services or were otherwise provided by a user.
3.5 Your Account. Except for your Content licensed to us as set forth above, the account you create and any related profile is owned by us. With regard to your account, you agree to: (i) keep your password secure and confidential; (ii) not permit others to use your account; (iii) not use the accounts of others; (iv) not transfer your account to another party; and (v) notify us of any actual or suspected unauthorized use of your account. You are responsible for any activity occurring under your account.
3.6 Feedback. You may from time to time identify problems, solutions to identified problems, provide suggestions, comments or other feedback related to our Site, Services or otherwise relating to Mindmarker (“Feedback”) to Mindmarker. You acknowledge and agree that all Feedback is and shall be given entirely voluntarily and Mindmarker shall be free to use or disclose such Feedback for any purpose. You further acknowledge and agree that your Feedback does not contain confidential or proprietary information and you are not entitled to any compensation or reimbursement of any kind from Mindmarker under any circumstances relating to such Feedback.Your EligibilityTo be eligible to use the Site or Services, you represent and warrant that you: (i) are at least 18 years of age, or otherwise over the age of majority in the jurisdiction in which you reside; (ii) are not currently restricted from the Site or Services and are not otherwise prohibited from having an account related thereto; (iii) will only maintain one account at any given time; (iv) will only provide accurate information to Mindmarker; (v) have full power and authority to enter into these Terms and doing so will not violate any other agreement to which you are a party; and (vi) will not violate any rights of Mindmarker or a third party, including intellectual property rights.
Personal Use; Limited License; Ownership
Subject to the terms and conditions herein, Mindmarker grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license and right to access the Mindmarker Site and the Services through a generally available web browser, mobile device or Mindmarker authorized application to view content and information and otherwise use the Services to the extent intended and permitted by the functionality thereof. This license is personal to you, and you may not resell our Services, permit other users access to our Services through your account, or use the Services to host content for others. You may not copy or download any content from the Site or Services except with the prior written approval of Mindmarker. You acknowledge that, except as otherwise expressly provided, these Terms are solely between you and Mindmarker. Furthermore, without the prior written approval of Mindmarker, you may not distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of Site content or Services. Any commercial use of the Site or Services not expressly authorized is prohibited. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to the Site or Services. Your rights are subject to your compliance with these Terms as well as any other agreements applicable to the Services you are using. Making unauthorized copies or distribution of Site content or otherwise violating these Terms may result in the termination of your Mindmarker account, prohibition on use of the Services, and further legal action. The Site and Services provided by Mindmarker are licensed, not sold. The Site and Services, and all copies of the Site and Services, are owned by Mindmarker or its third party licensors and are protected by various intellectual property laws, including, without limitation, copyright and trade secret laws. Mindmarker reserves all rights not expressly granted to you herein. You agree that you have no right to any Mindmarker trademark or service mark and may not use any such mark in any way unless expressly authorized by Mindmarker. Mindmarker reserves the right to limit your use of or access to the Site or Services, in its sole discretion in order to maintain the performance and availability of the Site and to enforce these Terms of Service.
Use Of Services
Mindmarker is not liable for the loss, corruption, alteration or removal of any content transmitted using our Services. By using our Services, you expressly waive the right to seek damages and agree to hold Mindmarker harmless for any such loss, alteration, corruption or removal. You acknowledge and agree that you are solely responsible for retaining all records and reconciling all transaction information relating to your use of the Site or Services. Mindmarker may also at any time modify or discontinue, temporarily or permanently, all or any part of the Services or your account, with or without notice, and you agree that Mindmarker will not be liable to you or any third party for any such modification, suspension or discontinuance. Our Services are not intended to be used in countries where offering or providing the Services is illegal. Subject to Section 19.1, you may terminate these Terms by terminating your use of the Site and Services and any related account.Mindmarker ApplicationsMindmarker may offer the Services through applications built using Mindmarker’s platform, including any mobile device applications or interactive plugins distributed on third-party websites. If you use Services through an application or interact with a Mindmarker plugin on a third-party site, we may receive information about you and your use of the Services. Additionally, by using an application that relates to or enables your use of the Services, you are accepting the terms of any end user license agreement associated with such application, in addition to these Terms. If you are accessing the Services through an application from the Apple App Store, you and Mindmarker agree to the following additional terms:
Mindmarker and you acknowledge that these Terms are concluded between you and Mindmarker only, and not with Apple, and Mindmarker, not Apple, is solely responsible for the Services and the content thereof. Mindmarker and you agree to be bound by the App Store Terms of Service as of the Effective Date (which you acknowledge you have had the opportunity to review), including without limitation the Usage Rules (as defined in the App Store Terms of Service) (capitalized terms below have the definitions given to them in the App Store Terms of Service unless otherwise defined herein).
You may only access the Services on an iOS product that you own or control and only as permitted by the Usage Rules set forth in the App Store Terms of Service.
To the extent set forth herein or required by applicable law, Mindmarker is solely responsible for providing any maintenance and support services with respect to the Services. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services.
Mindmarker, not Apple, is solely responsible for any product warranties set forth in these Terms, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the application to you; provided that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, if any, will be Mindmarker’s sole responsibility, to the extent not disclaimer herein.
Mindmarker and you acknowledge that Mindmarker, not Apple, is responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Apple shall in no way be responsible for any claim (including any related investigation, defense, settlement or discharge thereof) that the Services or your possession and use of the Services infringe any third party’s intellectual property rights.
Third-Party Content & SitesWe do not control, and we are not responsible for, any third-party data, content, services, or products (including software) that you access, download, receive or buy while using the Services. We may, but do not have any obligation to, block information, transmissions or access to certain information, services, products or domains to protect the Services, our network, the public or our users. We are not a publisher of third-party content accessed through the Services. We are not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Service. From time to time, the Site and Services may contain references or links to third-party materials not controlled by Mindmarker or its suppliers or licensors. Mindmarker provides such information and links as a convenience to you and should not be considered endorsements of such sites or any content, products or information offered on such sites. You acknowledge and agree that Mindmarker is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked to the Site or Services. You are responsible for evaluating whether you want to access or use a third party sites. Accordingly, if you decide to use third party sites, you do so at your own risk and agree that these Terms do not apply to your use of any third party sites. You should review any applicable terms or privacy policy of a third party sites before using it or sharing any information.Acceptable Use PolicyYou agree to comply with all applicable laws and regulations in connection with your use of the Site and Services. You may not use our Site or Services to post or transmit any illegal material, including without limitation any transmissions that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:
The transmission or posting of chain letters or pyramid schemes, or other acts that involve deceptive online marketing practices or fraud;
Acts that may materially and adversely affect the quality of other users’ experience;
Actual or attempted unauthorized use or sabotage of any computers, machines or networks;
Introducing malicious programs into Mindmarker’s Services, network or servers (e.g. viruses, worms, Trojan horses, etc.);
Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Site or Services, or any part thereof;
Adapt, modify or create derivative works based on the Site, Services, or technology underlying the Services, or other users’ content, in whole or part;
Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, or otherwise transfer information found on the Site or Services (excluding content posted by you) except as permitted in these Terms, or as expressly authorized by Mindmarker in writing;
Transmitting or receiving, uploading, using or reusing material that is abusive, indecent, defamatory, harassing, obscene or menacing, or a breach of confidence, privacy or similar third party rights;
Transmitting or receiving, uploading, using or reusing material that violates any intellectual property rights of a third party, including, without limitation, patents, trademarks, trade secrets or copyrights; and Falsifying user identification information.
Copyright Protected Materials
Mindmarker respects the intellectual property rights of others and expects that you do the same. It is our policy to terminate, in appropriate circumstances, the accounts of subscribers who infringe the copyrights of others. You may not upload, download, post, publish, transmit, reproduce, or distribute in any way, files, material, information, software or other material obtained through the Site or Services that is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copyright owner or other right holder. Mindmarker has the right, but not the obligation, to remove from the Site and Services any files, material, information, software or other material Mindmarker believes is or may be, in its sole discretion, infringing or otherwise in violation of the rights of others. If you believe in good faith that your copyright has been infringed, please provide a written communication regarding such belief to: support@mindmarker.com. Mindmarker’s copyright policy is available on its website at https://www.mindmarker.com/copyright/.Export Control Laws.The Services may be subject to export control restrictions of the United States, the European Union, Canada or other jurisdictions. By using the Services, you represent and warrant that (i) you are not located in any country, or exporting the Service to any person or place, to which the United States, the European Union, or any other jurisdiction has embargoed goods or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to Services any content, data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. The assurances and commitments in this Section shall survive termination of these Terms.
Right To Restrict Or Terminate Access
Mindmarker may deny or restrict your access to all or part of the Site or Services without notice in its reasonable discretion if it deems that you have engaged in any conduct or activities that Mindmarker in its reasonable discretion believes violates the letter or spirit of any of these Terms. If Mindmarker denies or restricts your access to the Services because of such a violation, you shall have no right to obtain any refund or credit for the subscriptions fees you have paid. In the event that these Terms or the Services are terminated for any reason or no reason, you acknowledge and agree that you will continue to be bound by these Terms. Following termination, you shall immediately cease use of the Site and Services and any license granted to you under any agreement related to your use of the Site or Services shall immediately terminate. Upon termination, Mindmarker may, in its sole discretion, store your Content on its servers for a reasonable period of time or longer pursuant to its rights under these Terms, but we do not guarantee that your Content will still be available upon re-activation at a later time. Notwithstanding the foregoing, Mindmarker reserves the right to delete all of your Content, data, and other information stored on Mindmarker’s servers. Mindmarker will not be liable to you or any third party as a result of the termination of these Terms or the Services or for any actions taken by Mindmarker pursuant to these Terms as a result of such termination. Without limiting the generality of the foregoing, Mindmarker will not be liable to you or any third party for damages, compensation, or reimbursement relating to your use of the Site or Services, or the termination thereof.SecurityYou acknowledge and agree that you are solely responsible for protecting your password and other personal information and for the consequences of not protecting such data. Access to our Services and to certain online transactions may involve the use of identification numbers, passwords, or other individualized nonpublic information (“Private Documentation”). You shall use your best efforts to prevent unauthorized use of our Services, your account, or of any Private Documentation, and shall promptly report to Mindmarker any suspected unauthorized use or other breach of security. You shall be responsible for any unauthorized use of your account, identification numbers or passwords until we receive written notice of a breach of security and a request to block further access for such numbers and passwords.Children And MinorsBy using our Services, you affirm that you are at least 18 years of age, or otherwise over the age of majority in the jurisdiction in which you reside. In accordance with the Children’s Online Privacy Protection Act (COPPA) and associated rules, we do not knowingly collect or maintain any personal information from children under 13.Disclaimer Of WarrantyThe Services and Site may be subject to unavailability for a variety of factors beyond our control including emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed. Delays or omissions may occur. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Site, Services, or communications services or networks.
YOUR USE OF THE SITE AND SERVICE IS AT YOUR SOLE RISK. THE SITE, ALL SITE CONTENT, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. MINDMARKER DOES NOT WARRANT THAT THE SITE OR SERVICES WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. MINDMARKER DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE OR SERVICE, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, MINDMARKER’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE AND SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.Limitation Of LiabilityUNDER NO CIRCUMSTANCES WILL MINDMARKER, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“MINDMARKER PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES OR SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES OR OUR SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. A MINDMARKER PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE SUM OF ONE HUNDRED US DOLLARS ($100).SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE MINDMARKER PARTIES’ LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MINDMARKER TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN SECTIONS 15 AND 16 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
Indemnity
You agree to defend, indemnify and hold the Mindmarker Parties harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party arising out of or relating to (i) any violation of these Terms by you; (ii) your Content or any other content or material you transmit through our Site or Services; (iii) your violation of any rights of another; or (iv) your use of the Site or Services. Mindmarker reserves the right to assume the exclusive defense and control of any matter otherwise subject to defense by you.Electronic Notices And DisclosuresYou acknowledge and agree that Mindmarker may provide notices and other disclosures to you, required by these Terms, any other agreement, or law, electronically by posting such notices or other disclosures on Mindmarker’s website or by emailing it to you at any email address provided to Mindmarker by you. Such notices or other disclosures shall be considered received by you following the posting on the website or twenty-four (24) hours following the email being sent to you, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to you as a paper copy.General Terms
19.1. Entire Agreement; Amendment; Severability; Survival. These Terms, along with any rules, guidelines, or policies published on the Mindmarker homepage constitute the entire agreement between Mindmarker and you with respect to your use of our Site Services. Mindmarker’s failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right. If there is any conflict between the Terms and any other rules or instructions posted on the Site or Services, the Terms shall control. No amendment to these Terms by you by shall be effective unless acknowledged in writing by Mindmarker. Notwithstanding the foregoing, Mindmarker reserves the right, in its sole discretion, to modify these Terms or the policies referenced herein at any time as set forth above. If any portion of these Terms is found to be unenforceable or invalid for any reason, that provision will be limited or eliminated to the minimum extent necessary so that the rest of these Terms will otherwise remain in full force and effect. Any sections or terms which by their nature should survive or are otherwise necessary to enforce the purpose of these Terms, will survive the termination of these Terms and termination of the Services.
19.3. Governing Law, Jurisdiction and Venue. These Terms shall be governed by, and construed in accordance with, the laws of the state of Georgia, without reference to its choice of law rules. Subject to the arbitration provisions below, exclusive venue for any action arising out of or in connection with this agreement shall be in Atlanta, Georgia. The parties each hereby consent to the jurisdiction and venue in Atlanta, Georgia and waive any objections to such jurisdiction and venue. Notwithstanding the foregoing, you agree that Mindmarker shall be entitled to apply for injunctive remedies or other equitable relief in any jurisdiction.
19.4. Dispute Resolution. Excluding claims for injunctive or other equitable relief, for any claim where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution provider mutually agreed upon by the parties. The arbitration shall be conducted by telephone, online or be solely based on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. Any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial. Subject to any applicable law to the contrary, you agree that any cause of action arising out of or related to the use of our Site or Services must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred.
19.5. Assignment. You may not assign your rights or obligations under these Terms without the prior written consent of Mindmarker, which may be withheld in Mindmarker’s sole discretion.
19.6. Mindmarker’s Rights Cumulative. These Terms do not limit any rights that Mindmarker may have pursuant to any intellectual property laws or any other laws. All rights and remedies available to Mindmarker, pursuant to these Terms or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available to Mindmarker.
19.7 Notice. If you have any questions, complaints, or claims, you may contact Mindmarker at: support@mindmarker.com.
19.8 Third-Party Beneficiaries. If you are accessing the Services through an application from the Apple App Store, Mindmarker and you acknowledge and agree Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple 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. Except for the foregoing or as otherwise expressly set forth herein, there shall exist no right of any person, other than you and Mindmarker, to claim a beneficial interest in these Terms or any rights occurring by virtue of these Terms.
These Terms of Service (“Terms”) govern your use of the websites (collectively and individually, the “Site”) and related products and services, mobile applications, or any content or information provided as part of the Site (collectively, the “Services”), which are owned or operated by Mindmarker, LLC (“Mindmarker”, “we”, “our” or “us”).
These Terms are an agreement between you and Mindmarker with respect to the Services. By accessing the Site or registering for or using the Services, you: (1) acknowledge that you have read and understand these Terms; (2) agree to be bound by them in their entirety, and (3) are entering into a legally binding agreement with us. Our Privacy Policy, available at https://mindmarker.com/privacy-policy, is incorporated by reference into these Terms. Please read these Terms and the Privacy Policy before you access the Site or Services, as these Terms form a binding legal agreement between you and Mindmarker.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SITE OR SERVICES. YOUR USE OF OUR SITE AND SERVICES REQUIRES YOUR ACCEPTANCE OF THESE TERMS AS THEY MAY BE AMENDED FROM TIME TO TIME, INCLUDING THE POLICIES INCORPORATED BY REFERENCE HEREIN, WHICH INCLUDES THE MINDMARKER PRIVACY POLICY.
Changes To The Terms
We may add to, change or remove any part of these Terms, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of these Terms. Such modification shall be effective immediately upon posting at the Site. As your next visit to a Site or use of the Services may be governed by different Terms, we encourage you to look for a new effective date on these Terms when you visit the Site or use the Services. It is your responsibility to check these Terms periodically for changes. If we make any material changes to these Terms, we will endeavor to provide registered users with additional notice of any changes, such as at your e-mail address of record or when you log-in to your account. Your use or continued use of the Site or Services following the posting or notice of any changes to these Terms or any other posted policies shall constitute your acceptance of the changed Terms or policies.Authorized User; Your Responsibility.You may not access or use the Services if you are unable to form a binding, legal agreement with Mindmarker. You affirm that you are over the age of 18 and otherwise have the authority to enter into these Terms. You assume all responsibility for your use of, and access to, the Site or Services. Accounts are for a single user. Any multiple-party use is prohibitted. For example, sharing a login between users and other individuals is prohibited.Personal Information; Your Content; Your Account
3.1. Accuracy. By registering for our Services, you represent and warrant that all information you submit to us is true, accurate, current and complete and that you will promptly notify us in writing if your information changes. We are not responsible for any disputes or claims related to any inaccurate, incomplete, or untimely information provided by you to us.
3.2. Privacy. You may browse the Site without providing us with any personal information; however, to use our Services, you may be required to register with us and submit certain personally identifiable information. You expressly agree that we may collect, disclose, store and otherwise use your information in accordance with the terms of the Mindmarker Privacy Policy, available at https://www.mindmarker.com/privacy-policy/.
3.3 Your Content. As between you and Mindmarker, you own the information, materials, photos, or other content you provide Mindmarker through or in connection with the Services (“Content”). Any Content that you upload or otherwise provide to Mindmarker in connection with the Site or Services may be used by Mindmarker in order to provide and promote the Site, Services or Mindmarker’s business, subject to the Mindmarker Privacy Policy. Notwithstanding the following licenses, you retain all rights to the Content, except as otherwise provided herein or as otherwise provided in any other agreement between you and Mindmarker. Any Content you submit to us is provided at your own risk of loss. You are solely responsible for all Content you share, provide, display, publish, or disseminate to others, whether such action was taken by us or you. By providing Content to us, you represent and warrant that you are entitled to submit it and that it is not confidential and not in violation of any law, contractual restrictions or other third party rights (including any intellectual property rights). Mindmarker may also remove or delete your Content from the Site or Services at any time in its sole discretion.
3.3.1 Manager License. If you are using the manager or administrative version of the Services, you grant to Mindmarker, and all of its subsidiaries, affiliates, successors, and assigns a worldwide, perpetual, royalty-free, fully paid, sublicensable, non-exclusive, and transferable right to publish, reproduce, distribute, modify, adapt, publicly display and otherwise use the Content as reasonably necessary or appropriate to provide the Services.
3.3.2 Personal User License. If you are using the standard user version of the Services, you grant to Mindmarker, and all of its subsidiaries, affiliates, successors, and assigns, a worldwide, perpetual, royalty-free, fully paid, sublicensable, non-exclusive, and transferable right to publish, reproduce, distribute, modify, prepare derivative works of, adapt, publicly display and otherwise use the Content. Such right to use such Content shall survive the termination of these Terms and termination of the Services. You authorize us to use, forward, or post your profile or related information on other sites and services.
3.4 Interactions with Other Users. You are solely responsible for all interactions with other users. Mindmarker may offer various forums which allow you to post comments. Mindmarker may also enable sharing of information by allowing users to post content and information. Pursuant to the license granted by you above, Mindmarker may grant other users of the Site or Services access and share rights to your Content in accordance with these Terms, your settings and the nature of your connection with such other users. Information you share may be seen and used by other users of the Site or Services. Mindmarker cannot guarantee that users of the Site or Services will not use the information that you share on Mindmarker, nor the manner of use. Mindmarker is not responsible for another user’s or other third party’s misappropriation or misuse of your Content or other information. Additionally, Mindmarker is not responsible for the truthfulness, accuracy, authenticity, or completeness of any of the Content or any other information provided by other users or any other third party. You hereby release Mindmarker from all claims, demands, or damages of every kind, known or unknown, in any way connected with (i) any relationship arising between users of the Site or Service, (ii) any dispute between you and another user, or (iii) arising out of any services which originated through the Site or Services or were otherwise provided by a user.
3.5 Your Account. Except for your Content licensed to us as set forth above, the account you create and any related profile is owned by us. With regard to your account, you agree to: (i) keep your password secure and confidential; (ii) not permit others to use your account; (iii) not use the accounts of others; (iv) not transfer your account to another party; and (v) notify us of any actual or suspected unauthorized use of your account. You are responsible for any activity occurring under your account.
3.6 Feedback. You may from time to time identify problems, solutions to identified problems, provide suggestions, comments or other feedback related to our Site, Services or otherwise relating to Mindmarker (“Feedback”) to Mindmarker. You acknowledge and agree that all Feedback is and shall be given entirely voluntarily and Mindmarker shall be free to use or disclose such Feedback for any purpose. You further acknowledge and agree that your Feedback does not contain confidential or proprietary information and you are not entitled to any compensation or reimbursement of any kind from Mindmarker under any circumstances relating to such Feedback.Your EligibilityTo be eligible to use the Site or Services, you represent and warrant that you: (i) are at least 18 years of age, or otherwise over the age of majority in the jurisdiction in which you reside; (ii) are not currently restricted from the Site or Services and are not otherwise prohibited from having an account related thereto; (iii) will only maintain one account at any given time; (iv) will only provide accurate information to Mindmarker; (v) have full power and authority to enter into these Terms and doing so will not violate any other agreement to which you are a party; and (vi) will not violate any rights of Mindmarker or a third party, including intellectual property rights.
Personal Use; Limited License; Ownership
Subject to the terms and conditions herein, Mindmarker grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license and right to access the Mindmarker Site and the Services through a generally available web browser, mobile device or Mindmarker authorized application to view content and information and otherwise use the Services to the extent intended and permitted by the functionality thereof. This license is personal to you, and you may not resell our Services, permit other users access to our Services through your account, or use the Services to host content for others. You may not copy or download any content from the Site or Services except with the prior written approval of Mindmarker. You acknowledge that, except as otherwise expressly provided, these Terms are solely between you and Mindmarker. Furthermore, without the prior written approval of Mindmarker, you may not distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of Site content or Services. Any commercial use of the Site or Services not expressly authorized is prohibited. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to the Site or Services. Your rights are subject to your compliance with these Terms as well as any other agreements applicable to the Services you are using. Making unauthorized copies or distribution of Site content or otherwise violating these Terms may result in the termination of your Mindmarker account, prohibition on use of the Services, and further legal action. The Site and Services provided by Mindmarker are licensed, not sold. The Site and Services, and all copies of the Site and Services, are owned by Mindmarker or its third party licensors and are protected by various intellectual property laws, including, without limitation, copyright and trade secret laws. Mindmarker reserves all rights not expressly granted to you herein. You agree that you have no right to any Mindmarker trademark or service mark and may not use any such mark in any way unless expressly authorized by Mindmarker. Mindmarker reserves the right to limit your use of or access to the Site or Services, in its sole discretion in order to maintain the performance and availability of the Site and to enforce these Terms of Service.
Use Of Services
Mindmarker is not liable for the loss, corruption, alteration or removal of any content transmitted using our Services. By using our Services, you expressly waive the right to seek damages and agree to hold Mindmarker harmless for any such loss, alteration, corruption or removal. You acknowledge and agree that you are solely responsible for retaining all records and reconciling all transaction information relating to your use of the Site or Services. Mindmarker may also at any time modify or discontinue, temporarily or permanently, all or any part of the Services or your account, with or without notice, and you agree that Mindmarker will not be liable to you or any third party for any such modification, suspension or discontinuance. Our Services are not intended to be used in countries where offering or providing the Services is illegal. Subject to Section 19.1, you may terminate these Terms by terminating your use of the Site and Services and any related account.Mindmarker ApplicationsMindmarker may offer the Services through applications built using Mindmarker’s platform, including any mobile device applications or interactive plugins distributed on third-party websites. If you use Services through an application or interact with a Mindmarker plugin on a third-party site, we may receive information about you and your use of the Services. Additionally, by using an application that relates to or enables your use of the Services, you are accepting the terms of any end user license agreement associated with such application, in addition to these Terms. If you are accessing the Services through an application from the Apple App Store, you and Mindmarker agree to the following additional terms:
Mindmarker and you acknowledge that these Terms are concluded between you and Mindmarker only, and not with Apple, and Mindmarker, not Apple, is solely responsible for the Services and the content thereof. Mindmarker and you agree to be bound by the App Store Terms of Service as of the Effective Date (which you acknowledge you have had the opportunity to review), including without limitation the Usage Rules (as defined in the App Store Terms of Service) (capitalized terms below have the definitions given to them in the App Store Terms of Service unless otherwise defined herein).
You may only access the Services on an iOS product that you own or control and only as permitted by the Usage Rules set forth in the App Store Terms of Service.
To the extent set forth herein or required by applicable law, Mindmarker is solely responsible for providing any maintenance and support services with respect to the Services. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services.
Mindmarker, not Apple, is solely responsible for any product warranties set forth in these Terms, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the application to you; provided that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, if any, will be Mindmarker’s sole responsibility, to the extent not disclaimer herein.
Mindmarker and you acknowledge that Mindmarker, not Apple, is responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Apple shall in no way be responsible for any claim (including any related investigation, defense, settlement or discharge thereof) that the Services or your possession and use of the Services infringe any third party’s intellectual property rights.
Third-Party Content & SitesWe do not control, and we are not responsible for, any third-party data, content, services, or products (including software) that you access, download, receive or buy while using the Services. We may, but do not have any obligation to, block information, transmissions or access to certain information, services, products or domains to protect the Services, our network, the public or our users. We are not a publisher of third-party content accessed through the Services. We are not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Service. From time to time, the Site and Services may contain references or links to third-party materials not controlled by Mindmarker or its suppliers or licensors. Mindmarker provides such information and links as a convenience to you and should not be considered endorsements of such sites or any content, products or information offered on such sites. You acknowledge and agree that Mindmarker is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked to the Site or Services. You are responsible for evaluating whether you want to access or use a third party sites. Accordingly, if you decide to use third party sites, you do so at your own risk and agree that these Terms do not apply to your use of any third party sites. You should review any applicable terms or privacy policy of a third party sites before using it or sharing any information.Acceptable Use PolicyYou agree to comply with all applicable laws and regulations in connection with your use of the Site and Services. You may not use our Site or Services to post or transmit any illegal material, including without limitation any transmissions that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:
The transmission or posting of chain letters or pyramid schemes, or other acts that involve deceptive online marketing practices or fraud;
Acts that may materially and adversely affect the quality of other users’ experience;
Actual or attempted unauthorized use or sabotage of any computers, machines or networks;
Introducing malicious programs into Mindmarker’s Services, network or servers (e.g. viruses, worms, Trojan horses, etc.);
Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Site or Services, or any part thereof;
Adapt, modify or create derivative works based on the Site, Services, or technology underlying the Services, or other users’ content, in whole or part;
Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, or otherwise transfer information found on the Site or Services (excluding content posted by you) except as permitted in these Terms, or as expressly authorized by Mindmarker in writing;
Transmitting or receiving, uploading, using or reusing material that is abusive, indecent, defamatory, harassing, obscene or menacing, or a breach of confidence, privacy or similar third party rights;
Transmitting or receiving, uploading, using or reusing material that violates any intellectual property rights of a third party, including, without limitation, patents, trademarks, trade secrets or copyrights; and Falsifying user identification information.
Copyright Protected Materials
Mindmarker respects the intellectual property rights of others and expects that you do the same. It is our policy to terminate, in appropriate circumstances, the accounts of subscribers who infringe the copyrights of others. You may not upload, download, post, publish, transmit, reproduce, or distribute in any way, files, material, information, software or other material obtained through the Site or Services that is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copyright owner or other right holder. Mindmarker has the right, but not the obligation, to remove from the Site and Services any files, material, information, software or other material Mindmarker believes is or may be, in its sole discretion, infringing or otherwise in violation of the rights of others. If you believe in good faith that your copyright has been infringed, please provide a written communication regarding such belief to: support@mindmarker.com. Mindmarker’s copyright policy is available on its website at https://www.mindmarker.com/copyright/.Export Control Laws.The Services may be subject to export control restrictions of the United States, the European Union, Canada or other jurisdictions. By using the Services, you represent and warrant that (i) you are not located in any country, or exporting the Service to any person or place, to which the United States, the European Union, or any other jurisdiction has embargoed goods or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to Services any content, data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. The assurances and commitments in this Section shall survive termination of these Terms.
Right To Restrict Or Terminate Access
Mindmarker may deny or restrict your access to all or part of the Site or Services without notice in its reasonable discretion if it deems that you have engaged in any conduct or activities that Mindmarker in its reasonable discretion believes violates the letter or spirit of any of these Terms. If Mindmarker denies or restricts your access to the Services because of such a violation, you shall have no right to obtain any refund or credit for the subscriptions fees you have paid. In the event that these Terms or the Services are terminated for any reason or no reason, you acknowledge and agree that you will continue to be bound by these Terms. Following termination, you shall immediately cease use of the Site and Services and any license granted to you under any agreement related to your use of the Site or Services shall immediately terminate. Upon termination, Mindmarker may, in its sole discretion, store your Content on its servers for a reasonable period of time or longer pursuant to its rights under these Terms, but we do not guarantee that your Content will still be available upon re-activation at a later time. Notwithstanding the foregoing, Mindmarker reserves the right to delete all of your Content, data, and other information stored on Mindmarker’s servers. Mindmarker will not be liable to you or any third party as a result of the termination of these Terms or the Services or for any actions taken by Mindmarker pursuant to these Terms as a result of such termination. Without limiting the generality of the foregoing, Mindmarker will not be liable to you or any third party for damages, compensation, or reimbursement relating to your use of the Site or Services, or the termination thereof.SecurityYou acknowledge and agree that you are solely responsible for protecting your password and other personal information and for the consequences of not protecting such data. Access to our Services and to certain online transactions may involve the use of identification numbers, passwords, or other individualized nonpublic information (“Private Documentation”). You shall use your best efforts to prevent unauthorized use of our Services, your account, or of any Private Documentation, and shall promptly report to Mindmarker any suspected unauthorized use or other breach of security. You shall be responsible for any unauthorized use of your account, identification numbers or passwords until we receive written notice of a breach of security and a request to block further access for such numbers and passwords.Children And MinorsBy using our Services, you affirm that you are at least 18 years of age, or otherwise over the age of majority in the jurisdiction in which you reside. In accordance with the Children’s Online Privacy Protection Act (COPPA) and associated rules, we do not knowingly collect or maintain any personal information from children under 13.Disclaimer Of WarrantyThe Services and Site may be subject to unavailability for a variety of factors beyond our control including emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed. Delays or omissions may occur. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Site, Services, or communications services or networks.
YOUR USE OF THE SITE AND SERVICE IS AT YOUR SOLE RISK. THE SITE, ALL SITE CONTENT, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. MINDMARKER DOES NOT WARRANT THAT THE SITE OR SERVICES WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. MINDMARKER DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE OR SERVICE, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, MINDMARKER’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE AND SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.Limitation Of LiabilityUNDER NO CIRCUMSTANCES WILL MINDMARKER, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“MINDMARKER PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES OR SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES OR OUR SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. A MINDMARKER PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE SUM OF ONE HUNDRED US DOLLARS ($100).SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE MINDMARKER PARTIES’ LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MINDMARKER TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN SECTIONS 15 AND 16 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
Indemnity
You agree to defend, indemnify and hold the Mindmarker Parties harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party arising out of or relating to (i) any violation of these Terms by you; (ii) your Content or any other content or material you transmit through our Site or Services; (iii) your violation of any rights of another; or (iv) your use of the Site or Services. Mindmarker reserves the right to assume the exclusive defense and control of any matter otherwise subject to defense by you.Electronic Notices And DisclosuresYou acknowledge and agree that Mindmarker may provide notices and other disclosures to you, required by these Terms, any other agreement, or law, electronically by posting such notices or other disclosures on Mindmarker’s website or by emailing it to you at any email address provided to Mindmarker by you. Such notices or other disclosures shall be considered received by you following the posting on the website or twenty-four (24) hours following the email being sent to you, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to you as a paper copy.General Terms
19.1. Entire Agreement; Amendment; Severability; Survival. These Terms, along with any rules, guidelines, or policies published on the Mindmarker homepage constitute the entire agreement between Mindmarker and you with respect to your use of our Site Services. Mindmarker’s failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right. If there is any conflict between the Terms and any other rules or instructions posted on the Site or Services, the Terms shall control. No amendment to these Terms by you by shall be effective unless acknowledged in writing by Mindmarker. Notwithstanding the foregoing, Mindmarker reserves the right, in its sole discretion, to modify these Terms or the policies referenced herein at any time as set forth above. If any portion of these Terms is found to be unenforceable or invalid for any reason, that provision will be limited or eliminated to the minimum extent necessary so that the rest of these Terms will otherwise remain in full force and effect. Any sections or terms which by their nature should survive or are otherwise necessary to enforce the purpose of these Terms, will survive the termination of these Terms and termination of the Services.
19.3. Governing Law, Jurisdiction and Venue. These Terms shall be governed by, and construed in accordance with, the laws of the state of Georgia, without reference to its choice of law rules. Subject to the arbitration provisions below, exclusive venue for any action arising out of or in connection with this agreement shall be in Atlanta, Georgia. The parties each hereby consent to the jurisdiction and venue in Atlanta, Georgia and waive any objections to such jurisdiction and venue. Notwithstanding the foregoing, you agree that Mindmarker shall be entitled to apply for injunctive remedies or other equitable relief in any jurisdiction.
19.4. Dispute Resolution. Excluding claims for injunctive or other equitable relief, for any claim where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution provider mutually agreed upon by the parties. The arbitration shall be conducted by telephone, online or be solely based on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. Any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial. Subject to any applicable law to the contrary, you agree that any cause of action arising out of or related to the use of our Site or Services must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred.
19.5. Assignment. You may not assign your rights or obligations under these Terms without the prior written consent of Mindmarker, which may be withheld in Mindmarker’s sole discretion.
19.6. Mindmarker’s Rights Cumulative. These Terms do not limit any rights that Mindmarker may have pursuant to any intellectual property laws or any other laws. All rights and remedies available to Mindmarker, pursuant to these Terms or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available to Mindmarker.
19.7 Notice. If you have any questions, complaints, or claims, you may contact Mindmarker at: support@mindmarker.com.
19.8 Third-Party Beneficiaries. If you are accessing the Services through an application from the Apple App Store, Mindmarker and you acknowledge and agree Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple 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. Except for the foregoing or as otherwise expressly set forth herein, there shall exist no right of any person, other than you and Mindmarker, to claim a beneficial interest in these Terms or any rights occurring by virtue of these Terms.
