Terms of Use | Welcome to Mindjot! This page describes the Mindjot Terms of Use, and includes the Privacy Policy and Copyright Policy, as set forth elsewhere in this website, by reference. Your use of the mindjot.com system signifies your acceptance of and agreement with the policies as described in these documents. If you do not agree with these policies, then you may not use the Mindjot system. If we make any significant changes to these policies, we will notify you by posting a notice of such changes on the sign in page. 1. Terms of Use The following agreement (this “Agreement” or the “Terms of Use”) describes the terms on which Mindjot offers you access to its services (the “System”) which includes your Mindjot Account and associated web and mobile features. This offer is conditioned on your agreement to all of the terms and conditions contained in the Terms of Use, including the Privacy Policy and Copyright Policy, as set forth elsewhere in this website, and included in this Agreement by reference. By using the System, you agree to these Terms of Use. If you do not so agree, you should decline this agreement, in which case you are prohibited from accessing or using the System. Mindjot may amend this Agreement at any time in its sole discretion, effective immediately upon posting the amended Agreement in the System. 2. The System 2.1 Basic description of the System: a multi-user environment, including software and websites. The System is the multi-user online service offered by Mindjot, which allows users to communicate with each other and to post and exchange information and content via the Internet and wireless transmissions. Mindjot may add or remove features of the System from time to time. 2.2 Mindjot is a service provider, which means, among other things, that Mindjot does not control various aspects of the System. You acknowledge that Mindjot is a service provider that may allow people to interact online regarding topics and content chosen by users of the System, and that users can alter the System environment on a real-time basis. Mindjot generally does not regulate the content of communications between users or users’ interactions with the System and is not responsible for such content. 2.3 Content available in the System may be provided by users of the System, rather than by Mindjot. Mindjot and other parties have rights in their respective content, which you agree to respect. You acknowledge that: (i) by using the System you may have access to photographs, graphics, sound effects, music, video, audio, software, computer programs, animation, text, messages, information, data, tags, or other materials or creative output (collectively, “Content”), and (ii) Content may be provided under license by independent content providers, including contributions from other users of the System (all such independent content providers, “Content Providers”). Mindjot does not pre-screen Content. You acknowledge that Mindjot and other Content Providers have rights in their respective Content under copyright and other applicable laws and treaty provisions, and that, except as described in this Agreement, such rights are not licensed or otherwise transferred by mere use of the System. You accept full responsibility and liability for your use of any Content in violation of any such rights. You agree that your creation of Content is not in any way based upon any expectation of compensation from Mindjot. 2.4 The System is subject to scheduled and unscheduled service interruptions. All aspects of the System are subject to change or elimination at Mindjot’s sole discretion. Mindjot reserves the right to interrupt the System with or without prior notice for any reason or no reason. You agree that Mindjot will not be liable for any interruption of the System, delay or failure to perform, and you understand that except as otherwise specifically provided for, you shall not be entitled to any refunds of fees for interruption of service or failure to perform. Mindjot has the right at any time for any reason or no reason to change and/or eliminate any aspect(s) of the System as it sees fit in its sole discretion. 2.5 In the event you choose to use paid aspects of the System, you agree to the pricing and billing policies therein. Certain aspects of the System are provided for a fee or other charge. These fees and charges are described on the Websites, and in the event you elect to use paid aspects of the System, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted within the System. Mindjot may add new services for additional fees and charges, or proactively amend fees and charges for existing services, at any time in its sole discretion. 2.6 Mindjot may impose limitations on your usage of the System. You acknowledge that Mindjot may establish general practices and limits concerning use of the System, including, without limitation, the maximum number of days that content contained therein or other uploaded content will be retained by the System, the maximum number of comments, messages, or other postings, the maximum size of any comments, messages, or other postings, the maximum disk space that will be allotted on Mindjot’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the System in a given period of time. You agree that Mindjot has no responsibility or liability for the deletion or failure to store any comments, messages, or other postings, or any other content maintained or transmitted by the System. You acknowledge that Mindjot reserves the right to log off Accounts that are inactive for an extended period of time. 3. License Terms 3.1 You have a non-exclusive, limited, revocable license to use the System while you are in compliance with the Terms of Use. Subject to the terms of this Agreement, Mindjot grants to you a non-exclusive, limited, fully revocable license to use the Mindjot System during the time you are in full compliance with the Terms of Use. Nothing in this Agreement, or on Mindjot’s websites, shall be construed as granting you any other rights or privileges of any kind with respect to the System or to any Content. You acknowledge that your participation in the System, including your creation or uploading of Content in the System, does not make you a Mindjot employee and that you do not expect to be, and will not be, compensated by Mindjot for such activities. 3.2 You retain copyright and other intellectual property rights with respect to Content you create in the System, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Mindjot and to other users of the System. Users of the System can create Content on Mindjot’s servers in various forms. Mindjot acknowledges and agrees that, subject to the terms and conditions of this Agreement, you will retain any and all applicable copyright and other intellectual property rights with respect to any Content you create for the System, to the extent you have such rights under applicable law. Notwithstanding the foregoing, you understand and agree that by submitting your Content to any area of the System, you automatically grant (and you represent and warrant that you have the right to grant) to Mindjot: (a) a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, transferable, non-exclusive, sublicensable right and license to: (i) use, reproduce, distribute, publicly display, and publicly perform your Content within the System as permitted by you through your interactions on the System, and (ii) use, reproduce, modify, publicly display, and publicly perform (and to authorize third parties to use, reproduce, modify, publicly display, and publicly perform) any of your Content in any or all media for marketing and/or promotional purposes in connection with the System (including in compilations of works), provided that in the event that your Content appears publicly in material under the control of Mindjot, and you provide written notice to Mindjot of your desire to discontinue the distribution of such Content in such material (with sufficient specificity to allow Mindjot, in its sole discretion, to identify the relevant Content and materials), Mindjot will make commercially reasonable efforts to cease its distribution of such Content following the receipt of such notice, although Mindjot cannot provide any assurances regarding materials produced or distributed prior to the receipt of such notice; (b) the perpetual and irrevocable right to delete any or all of your Content, or any portion thereof, from Mindjot’s servers and from the System, whether intentionally or unintentionally, and for any reason or no reason, without any liability of any kind to you or any other party; and (c) a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, transferable, non-exclusive, sublicensable right and license to copy, analyze and use any of your Content as Mindjot may deem necessary or desirable for purposes of debugging, testing and/or providing support services in connection with the System. Further, you agree to grant to Mindjot a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, transferable, non-exclusive, sublicensable right and license to exercise the copyright, publicity, and database rights you have in your Account information, including any data or other information generated by your Account activity, in any media now known or not currently known, in accordance with our Privacy Policy as set forth elsewhere in this website, and included in this Agreement by reference. You also understand and agree that by submitting your Content to any area of the System, you automatically grant (or you warrant that the owner of such Content has expressly granted) to Mindjot and to all other users of the System a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, transferable, non-exclusive, sublicensable right and license, under any and all patent rights you may have or obtain with respect to your Content, to use your Content for all purposes within the System. You further agree that you will not make any claims against Mindjot or against other users of the System based on any allegations that any activities by either of the foregoing within the System infringe your (or anyone else’s) patent rights. You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your Content hereunder; (ii) you are solely responsible for, and Mindjot will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the System, including without limitation any legal consequences relating to your intellectual property rights; and (iii) Mindjot’s acknowledgement hereunder of your intellectual property rights in your Content does not constitute a legal opinion or legal advice, but is intended solely as an expression of Mindjot’s intention not to require users of the System to forego certain intellectual property rights with respect to Content they create using the System, subject to the terms of this Agreement. 3.3 Mindjot retains ownership of the Account and related data, regardless of intellectual property rights you may have in content you create or otherwise own. You agree that even though you may retain certain copyright or other intellectual property rights with respect to Content you create while using the System, you do not own the Account you use to access the System, nor do you own any data Mindjot stores on Mindjot servers (including without limitation any data representing or embodying any or all of your Content, or other information you have stored within your Account). Your intellectual property rights do not confer any rights of access to the System or any rights to data stored by or on behalf of Mindjot. 4. Registration and Password 4.1 You must establish an Account to use the System, using true and accurate registration information. You must establish an Account with Mindjot (your “Account”) to use the System, except for those portions of the Websites to which Mindjot allows access without registration. You agree to provide true, accurate, current and complete information about yourself as prompted by the registration form (“Registration Data”) and maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Either Mindjot or you may establish an Account with Registration Data provided to Mindjot by a third party, in which case you may have a separate, additional Account relationship with such third party. Mindjot assumes no liability or responsibility for your relationship with such third parties. Mindjot reserves the right to suspend or terminate your Account if it determines (or has a reasonable basis to believe) that your registration information is, at the time of registration or thereafter, incomplete, inaccurate or no longer current. You authorize Mindjot, directly or through third parties, to make any inquiries we consider necessary to validate your Registration Data. Mindjot reserves all rights to vigorously pursue legal action against all persons who misrepresent personal information or are otherwise untruthful about their identity, and to suspend or cancel Accounts registered with inaccurate or incomplete information. Notwithstanding the foregoing, you acknowledge that Mindjot cannot guarantee the accuracy of any information submitted by any user of the System, nor any identity information about any user. 4.2 You must be of the age of majority in order to access the System. You must be at least 18 years of age to participate in the System in the United States or must be of the age of majority in any other jurisdiction in which you are located. By accepting this agreement, you represent that: (i) you are of the age of majority in the jurisdiction in which you are located; (ii) you are capable of forming binding contracts; and (iii) you have read and accept this Agreement. Mindjot cannot absolutely control whether minors gain access to the System, and makes no representation that users are not minors. Mindjot cannot ensure that other users will not provide Content or access to Content that parents or legal guardians may find inappropriate or that any user may find objectionable. 4.3 You need to use an Account name in the System. You must select and keep secure your Account password. You must choose an Account name to identify yourself to Mindjot staff (your “UserID”), which will also serve as your identifier for all communications you make within the System. You may not select as your UserID the name of another person to the extent that could cause deception or confusion; a name which violates any trademark right, copyright, or other proprietary right; a name which may mislead other users to believe you to be an employee of Mindjot; or a name which Mindjot deems in its discretion to be vulgar or otherwise offensive. Mindjot reserves the right to delete or change any UserID for any reason or no reason. You are fully responsible for all activities conducted through your Account or under your UserID. At the time your Account is opened, you must select a password. You are responsible for maintaining the confidentiality of your password and are responsible for any harm resulting from your disclosure, or authorizing the disclosure of, your password or from use by any person of your password to gain access to your Account or UserID. At no time should you respond to an online request for a password other than in connection with the sign-in process to the System. Your disclosure of your password to any other person is entirely at your own risk. You accept responsibility for any use of the System under your user name and password. Please safeguard your password. You will promptly let Mindjot know if there is any unauthorized use of your user name and password. You acknowledge and hereby agree that Mindjot may assume that activity conducted under your user name and password is being conducted by you. 4.4 Account registrations are limited per unique person. Transfers of Accounts are generally not permitted. Mindjot may require you to submit an indication of unique identity in the Account registration process; e.g. credit card or other payment information, or email response or other information requested by Mindjot. When an Account is created, the information given for the Account must match the address, phone number, and/or other unique identifier information associated with the identification method. You may register multiple Accounts per identification method only at Mindjot’s sole discretion. A single Account may be used by a single legal entity at Mindjot’s sole discretion and subject to Mindjot’s requirements. Additional Accounts beyond the first Account per unique user may be subject to fees upon Account creation. You may not transfer your Account to any third party without the prior written consent of Mindjot; notwithstanding the foregoing, Mindjot will not unreasonably withhold consent to the transfer of an Account in good standing by operation of valid written will to a single natural person, provided that proper notice and documentation are delivered as requested by Mindjot. 4.5 You may cancel your Account at any time; however, there are no refunds for cancellation. Accounts may be cancelled by you at any time. Upon your written notification to Mindjot of your election to cancel, Mindjot will cancel your Account within 30 days, but if you have paid for a period in advance you will be allowed to use the remaining time according to these Terms of Use unless your Account or this Agreement is suspended or terminated based on our belief that you have violated this Agreement. There will be no refunds for any unused time on a subscription or any prepaid fees for any portion of the System. 4.6 Mindjot may suspend or terminate your Account at any time, without refund or obligation to you. Mindjot has the right at any time for any reason or no reason to suspend or terminate your Account, terminate this Agreement, and/or refuse any and all current or future use of the System without notice or liability to you. In the event that Mindjot suspends or terminates your Account or this Agreement, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees, any content or data associated with your Account, or for anything else. 4.7 Accounts affiliated with delinquent Accounts are subject to remedial actions related to the delinquent Account. In the event an Account is suspended or terminated for your breach of this Agreement or your payment delinquency (in each case as determined in Mindjot’s sole discretion), Mindjot may suspend or terminate the Account associated with such breach and any or all other Accounts held by you or your affiliates, and your breach shall be deemed to apply to all such Accounts. 4.8 You are responsible for your own network access. Mindjot does not provide Internet or any other type of network access, and you are responsible for all fees associated with your network connection, from any and all devices you use to access the System. 5. User Content and User Conduct 5.1 You agree to abide by certain rules of conduct. All photographs, graphics, sound effects, music, video, audio, software, computer programs, animation, text, messages, information, data, tags, or other materials or creative output (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that as a user, you are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the System. Mindjot does not control the Content posted via the System and, as such, does not guarantee the accuracy, integrity or quality of such Content. People over whom Mindjot exercises no control develop the Content delivered, stored or linked to by the System. Mindjot’s automated machinery and computers store the Content that is presented by Mindjot, and Mindjot cannot and does not screen the Content (but reserves the right to do so) before including it in the System. Using the System may include Content and/or links to Content that some people find objectionable, inappropriate, or offensive. We cannot guarantee that Content found in the System will not include unintended or objectionable Content and assume no responsibility for the Content of any kind provided through the System. Under no circumstances will Mindjot be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the System. You acknowledge that Mindjot may or may not pre-screen Content, but that Mindjot shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, move, or remove any Content that is available via the System. Without limiting the foregoing, Mindjot shall have the right to remove any Content that violates the Terms of Use or is otherwise objectionable. 5.2 You agree to not use the System to: Take any action or upload, post, e-mail, transmit or otherwise make available any Content as determined by Mindjot at its sole discretion that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or harms minors in any way; Impersonate any person or entity without their consent, including, but not limited to, a Mindjot employee, or falsely state or otherwise misrepresent your affiliation with a person or entity; Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the System; Take any action or upload, post, e-mail, transmit or otherwise make available any Content that would violate any right or duty 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 nondisclosure agreements); Take any action or upload, post, e-mail, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party; Take any action or upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, or promotional materials, that are in the nature of “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation that Mindjot considers in its sole discretion to be of such nature; Take any action or upload, post, e-mail, transmit or otherwise make available any Content that contains any viruses, Trojan horses, worms, spyware, time bombs, cancelbots or other software or computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, or to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; Interfere with or disrupt the System or servers or networks connected to the System, or disobey any requirements, procedures, policies or regulations of networks connected to the System; Take any action that imposes an unreasonable or disproportionately large load on Mindjot’s infrastructure; Take any action or upload, post, e-mail, transmit or otherwise make available any Content that violates any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law; Provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) dedicated to achieving power through illegal violent means; “Stalk”, abuse or attempt to abuse, or otherwise harass any other user. Any violation by you of the terms of the foregoing sentence may result in immediate and permanent suspension or cancellation of your Account. You agree that Mindjot may take whatever steps it deems necessary to abridge, or prevent behavior of any sort on the System in its sole discretion, without notice to you, including releasing your Personally Identifiable Information to the proper authorities. Attempt to gain access to any other user’s Account or password; 5.3 You will not make unauthorized works from or conduct unauthorized distribution of the Mindjot System. You may not charge any third party for using or accessing the System, and you may not modify, adapt, reverse engineer (except as otherwise permitted by applicable law), decompile or attempt to discover the source code of the Mindjot System, or create any derivative works of the Mindjot System, or otherwise use the Mindjot System except as expressly provided in this Agreement. You may not copy or distribute any of the written materials associated with the System. 5.4 You will comply with the processes of the Digital Millennium Copyright Act regarding copyright infringement claims covered under such Act. We may remove or disable access to materials pursuant to the Digital Millennium Copyright Act (“DMCA”), including as set forth in Mindjot’s Copyright Policy as set forth elsewhere in this website, and included in this Agreement by reference. You agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable. 5.5 You will not use the marks of Mindjot without Mindjot’s authorization. You are not permitted to use any of the trade, service or other marks registered to or owned by Mindjot, except as explicitly authorized by Mindjot in writing. 6. Other Product or Service Providers You may register for other services or products offline or through websites that are not owned and operated by Mindjot. Mindjot is not responsible for any products or services not expressly provided by Mindjot. Mindjot does not control and is not responsible for any information you provide to parties other than Mindjot. Mindjot is not a party to your agreement with any party that provides any other products or services to you in connection with your use of the System. 7. System Billing Policies The following billing and pricing policies apply to fees and charges for the System: 7.1 You may access the System through an Account that does not have an access fee, or through a subscription Account that has a recurring fee. These Accounts have different features and limitations. Mindjot currently offers free access to the System through Accounts that require registration, but do not include an access fee or recurring charges for access to the System (“Personal Accounts”). Only one Personal Account is permitted per unique user; additional Personal Accounts for the same unique user require payment. Uniqueness of users is determined in Mindjot’s sole discretion. Registering for a Mindjot Personal Account and obtaining a single UserID for personal use is currently free, but Mindjot reserves the right to charge for the System or any portion thereof. Personal Accounts are for personal, non-commercial use only. Mindjot also offers access to the System through Accounts that require registration and regular recurring charges (“Business Accounts”). The features and limitations of Personal Accounts and Business Accounts are provided at Mindjot’s sole discretion. In the event Mindjot charges you for any usage of the System, payment is to be made by providing either a valid credit card or other method approved by Mindjot (collectively, the “Payment Method”). All payments are non-refundable. If for any reason Mindjot is unable to charge the Payment Method for the full amount owed to Mindjot for the System provided, or if Mindjot is charged a penalty for any fee it previously charged to the Payment Method, Mindjot may pursue all available remedies in order to obtain payment, which shall include but will not be limited to, immediate cancellation without notice of any Accounts registered to the Account holder. Mindjot reserves the right to charge a reasonable service fee for administrative tasks outside the scope of its regular services. The Payment Method, when applicable, may be changed at any time by logging into the “Manage my Account” section of an Account. 7.2 All Fees are payable in advance. All access and subscription charges for the System are payable in advance. Mindjot is not responsible for any charges or expenses you incur resulting from charges billed by Mindjot in accordance with these Terms of Use (e.g. overdrawn Accounts, exceeding credit card limit, etc.). By providing a credit card number or other payment method with advance authorization features (e.g. some PayPal Accounts), you authorize Mindjot to continue charging the payment method for all charges due Mindjot until your Account is settled and is terminated by either you or Mindjot. Mindjot reserves the right to limit the number of Accounts that may be charged to a credit card or other payment or identification method per unique user. 7.3 Recurring charges have billing periods, which are usually aligned to bill on a single day for each billing period. Business Accounts may be offered on a monthly, quarterly, or annual basis. Monthly Accounts will be billed monthly on the same date of each month (e.g. the 10th of each month), beginning on the day you start your subscription. Quarterly, or “90 Day” Accounts will be billed quarterly on the same day (e.g. the 10th of every third month), beginning on the day you start your subscription. Annual Accounts will be billed each year on the same date, beginning on the day you start your subscription. Lifetime Accounts (if and as available from time to time in Mindjot’s discretion) will be billed in full at the time of purchase. 7.4 You may change your billing plan. If you decide to change your plan, for example from monthly to a longer-term plan or vice-versa, you may do so at any time by using your Manage my Account page on the System Website, where applicable. The new plan will go into effect but your credit card or other payment method will be charged with the new rate when your current subscription period billing cycle ends. 7.5 If you reactivate a cancelled Account, you may be charged a fee. At the end of a subscription period or other Account cancellation by you, your cancelled Account will become dormant. If you later want to reopen your Account, you may be able to return to your Manage my Account page and click the “re-activate” button at which time you will be prompted to review billing details to confirm that the plan you want is selected and that your credit card or other payment method is still valid. Mindjot may require a reactivation fee in the event Mindjot determines, in its sole discretion, that activation and reactivation of an Account is being conducted in a manner designed to evade compliance with this Agreement or other Mindjot policies and procedures. If, for any reason, your credit card or other payment method cannot be charged or payment is withheld, your Account will become dormant as if you had cancelled it. Notwithstanding the foregoing, Mindjot is not obligated to reactivate or retain any cancelled Account, and any effort to do so is at Mindjot’s sole discretion. 8. Disclaimer of Warranties THE MINDJOT SERVICES, AND ALL MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED IN THE MINDJOT SERVICES ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. MINDJOT AND ITS LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. MINDJOT AND ITS LICENSORS DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE MINDJOT SERVICES AND FOR THE ACCURACY, COMPLETENESS, LEGALITY, RELIABILITY, OR AVAILABILITY OF ANY CONTENT. MINDJOT AND ITS LICENSORS DISCLAIM, ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE MINDJOT SERVICES. MINDJOT AND ITS LICENSORS DISCLAIM ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE MINDJOT SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED BY THE MINDJOT SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS PROVIDED IN THE MINDJOT SERVICES. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE MINDJOT SERVICES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA. Without limiting the foregoing, Mindjot does not ensure continuous, error-free, secure or virus-free operation of the System, the Mindjot Software or your Account, and you understand that you shall not be entitled to refunds for fees based on Mindjot’s failure to provide any of the foregoing other than as explicitly provided in this Agreement. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION. 9. Limitation of Liability UNDER NO CIRCUMSTANCES SHALL MINDJOT OR ANY OF ITS SHAREHOLDERS, PARTNERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES, EMPLOYEES, AGENTS, SUPPLIERS, LICENSEES OR DISTRIBUTORS BE LIABLE TO ANY USER OR TO ANY THIRD PARTY ON ACCOUNT OF ANY USER’S USE OR MISUSE OF OR RELIANCE ON THE MINDJOT SERVICES OR OTHERWISE ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF MINDJOT OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE MINDJOT SERVICES, FROM INABILITY TO USE THE MINDJOT SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE MINDJOT SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES, GOODS, OR CONTENT RECEIVED THROUGH OR ADVERTISED ON THE MINDJOT SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE MINDJOT SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE MINDJOT SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE MINDJOT SERVICES. THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE MINDJOT SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE MINDJOT SERVICES. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. ANY CLAIM THAT A USER OF THE SERVICES MAY HAVE AGAINST ANOTHER USER OF THE SERVICES SHALL NOT BE GROUNDS FOR ASSERTING A CLAIM AGAINST MINDJOT, AND UNDER NO CIRCUMSTANCES SHALL MINDJOT BE LIABLE TO ANY USER FOR ANY CLAIM ARISING OUT OF OR RELATING TO ANY DISPUTE OR CLAIM BETWEEN USERS. Without limiting the foregoing, under no circumstances shall Mindjot or its licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. 10. All data are subject to deletion, alteration or transfer. When using the System, you may accumulate Content or other information that reside as data on Mindjot’s servers. THESE DATA, AND ANY OTHER DATA, ACCOUNT HISTORY AND ACCOUNT NAMES RESIDING ON MINDJOT’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN MINDJOT’S SOLE DISCRETION. YOU ACKNOWLEDGE THAT, NOTWITHSTANDING ANY COPYRIGHT OR OTHER RIGHTS YOU MAY HAVE WITH RESPECT TO ITEMS YOU CREATE USING THE SYSTEM, AND NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH CONTENT OR OTHER DATA BY YOU OR ANY THIRD PARTY, MINDJOT DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS (SUBJECT TO ANY UNDERLYING INTELLECTUAL PROPERTY RIGHTS IN THE CONTENT), ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON MINDJOT’S SERVERS. YOU UNDERSTAND AND AGREE THAT MINDJOT HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE ANY CONTENT (INCLUDING YOUR CONTENT) IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. 11. Indemnification At Mindjot’s request, you agree to defend, indemnify and hold harmless Mindjot, its shareholders, partners, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, distributors, Content Providers, and other users of the System, from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from any breach of this Agreement by you or from your use of the System, including, but not limited to, your infringement of any third party rights and any action or inaction by you in connection with the deletion, alteration, transfer, or loss of Content, status, or other data held in connection with your Account or any other Account. 12. Changes in Terms and Conditions Mindjot may modify or terminate our services from time to time, for any reason, and without notice, including the right to terminate with or without notice, without liability to you, any other user or any third party. We reserve the right to modify this Agreement from time to time without notice. If we make any significant changes to this Agreement, we will notify you by posting a notice of such changes on the sign-in page. 13. General Provisions The rights and obligations of the parties under this Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods; rather such rights and obligations shall be governed by and construed under the laws of the State of New York, without giving effect to its conflict of laws provisions or your actual state or country of residence. The System is controlled and operated by Mindjot from its offices within the State of New York, United States of America. Mindjot makes no representation that any aspect of the System is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access the System from other locations are responsible for compliance with applicable local laws. Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, shall be finally settled by binding arbitration in New York, New York under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with said rules. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for injunctive relief or enforcement of this arbitration provision without breach of this arbitration provision. Mindjot’s failure to act with respect to a breach by you or others does not waive Mindjot’s right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Mindjot under this Agreement shall be deemed effective unless delivered in a writing signed by a duly appointed officer of Mindjot. All or any of Mindjot’s rights and obligations under this Agreement may be assigned to a subsequent owner or operator of the System in a merger, acquisition or sale of all or substantially all of Mindjot’s assets. You may not assign or transfer this Agreement or any or all of your rights hereunder without the prior written consent of Mindjot, and any attempt to do so is void. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of Mindjot shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Mindjot. This Agreement sets forth the entire understanding and agreement between you and Mindjot with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the Terms of Use will be effective only if in writing and signed by Mindjot. The section headings used herein, including descriptive summary sentences at the start of a section, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions. At Mindjot’s discretion, Mindjot may give notice to you by means of a general notice on the website, by electronic mail to your e-mail address on our records for your Account, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record for your Account. 14. How to Contact Us Mindjot welcomes your questions and comments. Please direct any communications to: Terms of Use You may also click the Feedback link on the bottom of each page within the web site. 2008 February 14 |
