Date of Last Update: May 13, 2020
Please read these Terms carefully before using the Services. By accessing or using the Services, you agree to be legally bound by these Terms and all terms, policies and guidelines incorporated by reference in these Terms (collectively, the “Agreement”). If you do not agree with these Terms in their entirety, you may not use the Services. IF YOU ARE AN INDIVIDUAL ACCESSING OR USING THE SERVICES ON BEHALF OF, OR FOR THE BENEFIT OF, ANY CORPORATION, PARTNERSHIP OR OTHER ENTITY WITH WHICH YOU ARE ASSOCIATED (AN “ORGANIZATION”), YOU REPRESENT AND WARRANT THAT (I) YOU ARE DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ORGANIZATION’S BEHALF AND TO BIND SUCH ORGANIZATION, AND (II) SUCH ORGANIZATION HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. References to “you” and “your” in this Agreement will refer to both the individual using the Services and to any such Organization.
The Services are intended for use by businesses and are not targeted at or intended to be used by children. You must be at least of the age of majority in your jurisdiction to use the Services.
In these Terms, our customers and the persons to whom they give “staff” or “advisor” access to their MindBridge account are called “Subscribers”. In order to become a Subscriber, such customer must have executed an order form with MindBridge or its authorised Resellers (as defined below) for the Services (“Order Form”). Our Subscribers’ customers who are authorised by such Subscriber to use the Subscriber’s instance of the Services are called “Customers”, and users of the Services, whether they are Subscribers or Customers, are collectively referred to as “Users”.
MindBridge reserves the right to change or modify these Terms, or any policy or guideline applicable to the Services, at any time and in its sole discretion. If we do so, we will notify Subscribers at the email address that provided in the applicable registration information, if any, or we will post a notice in the App visible to you the next time you access the App and/or an update on the Website. Material changes will take effect from the next renewal of any subscription period under the applicable Order Form by the Subscribers), and all minor changes that are not material to the Terms will take effect from the date of update. If you do not agree with the changes, (i) as a Subscriber you can elect not to renew the Order for the next subscription period; or (ii) as a User, you can elect not to use the Service. Your continued use of the Services after such time will constitute your acceptance of such changes or modifications. You should from time to time review the Terms and any policies and documents incorporated in them to understand the terms and conditions that apply to your use of the Services. The Terms will always show the “last updated” date at the top. If you have subscribed for the Services through an agreement with an approved reseller of MindBridge (“Reseller”), the foregoing rights may be subject to the terms of your agreement with such Reseller.
The Services are for your own use only. You may not resell, lease or provide them in any other way to anyone else, except as expressly permitted.
Subscribers further agree that, if and to the extent that any information Subscribers provide is subject to the General Data Protection Regulation (GDPR) (EU) 2016/679 (concerning the processing of the personal information of individuals resident in the European Union), as between Subscribers and MindBridge, the terms of MindBridge Data Processing Addendum shall apply. To the extent that Subscribers process data on behalf of their Customers, or Resellers (where expressly authorised by Subscribers) process data on behalf of Subscribers, such processing is a separate relationship outside of the scope of this Agreement and the MindBridge Data Processing Addendum, and it is the responsibility of Subscriber to enter into separate agreements to govern such relationship(s).
- Registration Data; Account Security
If you register for an account on the Services, you agree to (a) provide accurate, current and complete information as may be prompted by any registration forms on the Services (“Registration Data”); (b) maintain the security of your authentication credentials (e.g. password, tokens) and API key (if applicable); (c) maintain and promptly update the Registration Data, and any other information you provide to MindBridge, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information you provide to MindBridge.. You are responsible for all of your activity on your MindBridge account (including those of your authorized users and of any third party using your users’ log-in details through no fault of MindBridge).
- Fees; Charges; Taxes
Fees (including the basis of calculation of fees) and any other charges for the use of the Services and for any “Add-ons” (being third-party optional functionality and applications) and payment terms are described on the Website, a custom quote accepted by you in writing (whether through a purchase order or otherwise) with MindBridge or with an approved Reseller or as otherwise agreed in writing with you. Such fees that we charge you directly may change from time to time, but if you have licensed the Services through a Reseller then fee terms that you have agreed with the Reseller shall prevail. If we change them, we will give you at least 30 days’ notice. If they do change, your continued use of the Services or the Add-ons, as the case may be, after the change indicates your agreement with the new fees and charges after the effective date of the change. Any change to fees and other charges will not be applicable to the billing period in which the change occurs, as applicable to your subscription You are responsible for all taxes applicable to the fees and charges in any applicable jurisdiction.
- Ownership, Copyright and Trademarks
4.1: In these Terms, the content made available through the Services by MindBridge or its licensors, including all information, data, logos, marks, designs, graphics, pictures, sound files, other files and their selection and arrangement, is called “MindBridge Content.” Content provided by Users is called “User Content,” and includes reports or other similar content generated through the Service by a User using other User Content. As between MindBridge and a User, User Content is that User’s property. MindBridge’s only rights to that User Content are from the limited license to it granted in these Terms.
4.2: The Services, all MindBridge Content ) and all software available on the Services or used to create and operate the Services are the property of MindBridge or its licensors, and are protected by Canadian and international copyright laws, and all rights to the Services, such MindBridge Content and such software are expressly reserved. MindBridge’s trade names, trademarks and service marks include MindBridge, MindBridge & Design, M Design, Ai Auditor, Ai Advisor and any associated logos. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours or in any manner that is likely to cause confusion. All trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship or recommendation thereof by MindBridge.
4.3: Your User Content is your responsibility. We have no responsibility or liability for it or for any loss or damage your User Content may cause to you or other people. Although we have no obligation to do so, we have the absolute discretion to remove, screen or edit without notice any User Content processed or stored on the Services to the extent reasonably required in order to provide and maintain the integrity and security of the Services, and we may do this at any time and for any reason. You are solely responsible for maintaining copies of and replacing any User Content that you post or store on the Services. If, at your discretion, you authorize third parties to access your User Content through the Services, including through the MindBridge API or an Add-on, you agree that we are permitted to provide to such third parties the User Content in accordance with Section 5 and also agree that we have no responsibility or liability for their use of such User Content.
4.4: You acknowledge that all intellectual property rights in and to the Services and MindBridge Content are and will remain the sole property of MindBridge or of our licensors, if any. Nothing contained in this Agreement will be construed as conferring, by implication, estoppel or otherwise, upon you any ownership, license or other right except the licenses and rights expressly granted hereunder to you. In this Agreement, intellectual property rights include, without limitation, all intellectual property rights comprising or relating to: (a) patents; (b) trademarks; (c) Internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and uniform resource locators (URLs); (d) works of authorship, expressions, designs and industrial design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files and databases and other specifications and documentation; (e) trade secrets; and (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection under the laws of any jurisdiction in any part of the world.
- Your Limited License of Your User Content to MindBridge
5.1: We do not claim any ownership interest in your User Content, but we do need the right to use your User Content to the extent necessary to operate and provide the Services, now and in the future. Therefore, by posting or distributing User Content to or through the Services, you (a) hereby grant to MindBridge and its affiliates, subsidiaries and service providers a non-exclusive, royalty-free right to use, store and transmit such User Content in order to provide and improve the Services (except as otherwise expressly provided for below); and (b) represent and warrant that (i) you own and control all of the rights to the User Content that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute that User Content, to or through the Services,; and (ii) the use and posting or other transmission of such User Content to or through the Services does not violate these Terms and will not violate any rights of or cause injury to any person or entity (whether through infringement of intellectual property rights, breach of applicable privacy and personal information laws or otherwise).
5.2: It is part of the nature of the Services that the algorithms used in the Service continue to be updated and adjusted as different patterns are identified. Such patterns may be identified by us as a result of analysis of your User Content. You hereby acknowledge and agree that MindBridge is entitled to collect and retain any anonymized results of any analysis of your User Content (but excluding any actual User Content) for the purpose of making additions, adjustments or modifications to any algorithm (“Algorithm Adjustment”). MindBridge shall retain all intellectual property rights to such Algorithm Adjustments and, without limiting the foregoing, you acknowledge that (a) we (including all of our successors and assigns) may freely use any Algorithm Adjustment without any restrictions; and (b) you are not entitled to receive any compensation or re-imbursement of any kind in respect of any Algorithm Adjustment.
5.3: The license granted under Section 5.1 in respect of Services provided through an Installed App shall only apply to the extent required to permit us to discharge our on-going support and maintenance obligations to you as set out in Section 8.
- Our Limited License of Content to You
6.1:Subject to the rights and restrictions set out in the applicable Order Form, MindBridge grants to Users a limited, revocable, non-exclusive, non-sublicensable license to access the Services during the term set out in such Order Form and to view, copy and print the portions of the MindBridge Content made available to them through the Services. Such license is subject to these Terms, the applicable Order Form and specifically conditioned upon the following: (i) you may only view, copy and print such portions of the MindBridge Content for your own use or, in respect of reports generated by the MindBridge Content for Subscriber’s, for such Subscriber’s Customers’ use; (ii) you may not modify or otherwise make derivative works of the MindBridge Content, or reproduce, distribute or display the MindBridge Content (except for page caching), except as expressly permitted in these Terms; (iii) you may not remove or modify any copyright, trademark or other proprietary notices that have been placed in the MindBridge Content; (iv) you may not use any site search/retrieval application, data mining, robots, spiders, scraping or similar data gathering or extraction methods; and (v) you may not use the Services or the MindBridge Content other than for their intended purpose.
6.2: Any use of any portion of the MindBridge Content or Services except as expressly permitted herein is strictly prohibited and will terminate the licenses granted to you in this Agreement and your account with us. Any such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws. Unless explicitly stated herein, nothing in these Terms may be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license in this Section is revocable by MindBridge at any time, subject to the terms of this Agreement.
6.3: Your use of any Add-on is governed by the applicable license agreement (“EULA”) that applies to that Add-on, and not by this Section of the Terms. That EULA is an agreement between you and the provider of that Add-on, and you acknowledge that that EULA is a binding agreement between you and that provider. Your use of the Service through an Add-on, including any MindBridge Content that may be delivered to you through the Add-on, is subject to this Section.
6.4: You represent and warrant that (a) your use of the Services and the MindBridge Content will be consistent with the licenses granted herein and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties or violate any applicable law; (b) you will not, and if a Subscriber will not permit any Customer or other third party to, use the Services or the MindBridge Content to make decisions regarding the provision of credit, insurance, employment or continued employment, or other benefits to a Customer or other individual, or for other purposes restricted or regulated by applicable law; and (c) your use of the Services and MindBridge Content, and related submission of personal information or other data to us, will comply with all applicable laws.
6.5: To request permission for uses of MindBridge Content not included in this license, you may contact MindBridge at the address set out at the bottom of these Terms.
- Using the MindBridge App
This Section applies to use of both the SaaS App and the Installed App. Subject to the terms and conditions of these Terms, the applicable Order Form and your payment of the applicable fees we grant to Subscribers (and, if so expressly specified in the applicable Order Form, their Customers) a limited, non-exclusive, non-transferable, non-sublicensable, internal license to access the App and use the Services for your internal business purposes. The App contains trade secrets of MindBridge and you shall not reverse engineer, disassemble, reverse translate, decompile or in any other manner decode the App except to the extent that the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary; provided that if applicable law permits any of the foregoing activities in respect to the App, you may only attempt any such activities after you have requested the necessary information in writing from MindBridge and MindBridge has failed to make such information available to you within a reasonable period of time. You acknowledge and agree that no rights with respect to the source code of the App are granted to you. You shall not distribute, lease, rent, grant a security interest in, assign or otherwise transfer the App. You shall not modify or create any derivative works of the App or merge all or any part of the App with another program. You shall not disclose any performance, benchmarking or feature-related information about the App. You further agree not to disclose, transfer or otherwise provide to any third party any portion of the App except as explicitly permitted herein.
Except as this Agreement expressly permits, you shall not, and shall not permit any other person to:
- modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the App;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the App to any person, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- bypass or breach any security device or protection used for or contained in the App;
- use the App in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property rights or other right of any person, or that violates any applicable law;
- use the App for purposes of: (i) benchmarking or competitive analysis of the App; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to our detriment or commercial disadvantage;
- use the App in or in connection with the design, construction, maintenance, operation or use of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications or any other use or application in which the use or failure of the App could lead to personal injury or severe physical or property damage;
- use the App in any manner or for any purpose or application not expressly permitted by this Agreement; or
- allow any third party to have access to or use any portion whatsoever of the App, except as expressly provided herein.
- Using the Installed App
8.1: This Section 8 shall apply in the event that you use the Installed App in addition to the other terms of this Agreement (together with such other license terms as may be indicated on installation of such Installed App, if any). You shall only be entitled to install and use the Installed App where we expressly agree this with you under the terms of the applicable Order Form, and the following provisions are subject to this restriction.
8.2: You may install, use and run one copy of the Installed App on such number of server instances and in such locations as we may expressly agree with you from time to time. The Installed App is licensed to you on the terms of this Agreement and is not sold to you. All rights in and to the Installed App are our sole property and/or our licensors and are protected by all applicable intellectual property rights and contract laws. In accepting this license, you acknowledge that all intellectual property rights in the Installed App are and will remain our sole property and/or those of our licensors. Nothing contained in this agreement will be construed as granting to you, by implication, estoppel or otherwise any ownership, license or other right except the licenses and rights expressly granted hereunder to you. You may make one copy of the Installed App in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original. You may not make any additional copies of the Installed App without our express permission. Any copy of the Installed App made by you: (a) will remain our exclusive property; (b) will be subject to the terms and conditions of this Agreement; and (c) must include all copyright or other intellectual property rights notices contained in the original.
8.3: We shall deliver and, where so agreed, install one copy of the Installed App on your systems on such date as we may agree (whether in an order form or otherwise). Any installation and/or configuration services that we may provide shall be subject to the terms of a separate professional services agreement as agreed in accordance with Section 14. We may also provide such on-going maintenance and support services as may be separately agreed in a service level agreement as agreed in accordance with Section 14.
8.4: You covenant and undertake to procure that the server on which the Installed App is installed shall at all times be connected to the Internet (subject to reasonable downtime for sever and network maintenance and support) and shall be available for remote connection by us for the purposes set out in this Agreement. You acknowledge and agree that we shall have the right to access the Installed App for the purposes set out in this Agreement.
8.5: You further acknowledge and agree that we shall be entitled (but not obliged) to remotely update the Installed App with any Maintenance Release, provided that we shall give you not less than one (1) business days’ notice of the installation of such Maintenance Release. For the purpose of this Agreement, “Maintenance Release” means any update, upgrade, release or other adaptation or modification of the Installed App that may contain, among other things, security updates, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Installed App.
8.7: On the expiration or earlier termination of this Agreement, all rights, licenses and authorizations granted to you hereunder will immediately terminate and you shall immediately:
- cease all use of, and other activities with respect to, the Installed App; and
- permanently erase from all devices and systems, which you directly or indirectly control, the Installed App and our Confidential Information, and certify to us that you have so erased the Installed App and our Confidential Information.
- Use of MindBridge API
9.1: This Section contains terms and conditions applicable to your use of the MindBridge API through a website or application created by you (a “MindBridge API Implementation) to Users. The MindBridge API may be used, without limitation, for purposes of including MindBridge Content in Users’ MindBridge API Implementation. If you are a Subscriber and you procure a third party to develop a MindBridge API Implementation for you, this Section applies to your and their use of the MindBridge API, and you are responsible for their compliance with this Section to the same extent as though you were developing the MindBridge API Implementation yourself. The license set forth in Section 6 applies to your use of MindBridge Content (but not the MindBridge API), and this Section applies to your use of the MindBridge API.
9.3: Your use of the MindBridge API is also subject to the following restrictions. You may not:
- interfere or attempt to interfere in any manner with the proper workings of the MindBridge API, or create or distribute any MindBridge API Implementation that adversely affects the functionality or performance of the Services or adversely impacts the behavior of other applications using the MindBridge API;
- misrepresent your identity or intentions when communicating with us in relation to the MindBridge API, use the developer credentials licensed to a different individual or entity, allow your credentials to be used by others or mask your usage of the MindBridge API;
- use the MindBridge API in association with, or as a component of, any website that in the sole discretion of MindBridge is determined to be obscene or otherwise inappropriate;
- use the MindBridge API for any application that constitutes, promotes or is used in connection with spyware, adware, other malicious programs or code;
- use the MindBridge API in any manner or for any purpose that violates any law or regulation, any right of any person, including, but not limited to, intellectual property rights, rights of privacy or rights of personality;
- replicate, in whole or in part, the “look and feel” of MindBridge with your MindBridge API Implementation;
- include in your MindBridge API Implementation a combination of visual, design or functional elements that could reasonably be expected to cause confusion between MindBridge and your MindBridge API Implementation among users;
- disparage or otherwise negatively represent MindBridge in your MindBridge API Implementation;
- use the MindBridge API for any application that attempts to replace or replicate the essential user experience or functionality of the Services;
- reverse engineer, decompile or otherwise attempt to extract the source code of the Services or any part thereof except in compliance with the provisions of Section 7 above;
- circumvent or render ineffective any IP address-based functionality or restriction imposed by the Services;
- circumvent technological measures to prevent direct database access, nor manufacture tools or products to that effect;
- build conversion functionality that converts MindBridge Content from the Services to a competing product or service; or
- at any time you are operating your MindBridge API Implementation and for a period of six (6) months following termination of this Agreement, solicit, interfere with or endeavor to entice away from us any of our Subscribers, to the extent such a restriction is not prohibited by applicable law.
9.4: You agree to carefully monitor your use of the MindBridge API and ensure that it remains within reasonable operational limits for both your own server capacity and for ours. You acknowledge and agree that we may impose or adjust the limit on the number of transactions you may send or receive through the Service; such fixed upper limits may be set by us at any time, at our discretion.
9.5: MindBridge has no responsibility to any person for any use or misuse of any MindBridge Content obtained through the MindBridge API, except where resulting from the gross negligence or intentional misconduct of MindBridge, or MindBridge’s violations of the terms of this Agreement. If you are a Subscriber, you should consider carefully whether you wish to give access to your User Content through the MindBridge API. If you wish to revoke access to your User Content through the MindBridge API, you should change your MindBridge API key or revoke authorization of the MindBridge API Implementation to your User Content.
- Use of Interactive Areas of the Website and the Services
10.1: The Service may include support boards or other forums in which you may post content, messages, materials or other items on the Services (“Interactive Areas”). If MindBridge provides such Interactive Areas, you are solely responsible for your use of such Interactive Areas and use them at your own risk. Content submitted to any public area of the Services will be considered non-confidential. You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Services any of the following:
- Any message, data, information, text, music, sound, photos, graphics, code or other material that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or that would otherwise create liability or violate any local, state, national or international law;
- Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
- Unsolicited promotions, political campaigning, advertising or solicitations;
- Private information of any third party, including, without limitation, addresses, phone numbers, email addresses and credit card numbers, unless that third party has expressly consented to such use;
- Viruses, corrupted data or other harmful, disruptive or destructive files;
- Content that is unrelated to the topic of the Interactive Area(s) in which such content is posted; or
- Content that, in the sole judgment of MindBridge, is objectionable or that restricts or inhibits any other person from using or enjoying the Interactive Areas or the Services, or that may expose MindBridge or its affiliates or its users to any harm or liability of any type.
10.2: MindBridge has a “zero-tolerance” policy towards SPAM: you may not use the Interactive Areas or the Services generally to send commercial or other messages to any third party if those messages are not solicited, authorized or welcomed by the third party, and in your use of the Services, you must comply with all applicable laws, including laws that apply in any jurisdiction to SPAM and marketing practices, and with any applicable marketing association guidelines on ethical marketing practices.
10.3: Any use of the Interactive Areas or other portions of the Services in violation of the foregoing provisions violates these Terms and may result in, among other things, termination or suspension of your rights to use the Interactive Areas and/or the Services.
- Reliability and Security
11.1: We take reliability and security seriously. We take technical, contractual, administrative and physical security steps designed to protect data that we process or maintain in our Services. We use hosting services and security technologies and services that we believe provide appropriate and reliable protections for such data, including but not limited to: reasonable technical, organizational and physical safeguards including without limitation a policy specifying the types of end systems used to provide the Services to (i) protect the confidentiality and integrity of data, to the extent we protect our own confidential information and in no event less than reasonable means, uploaded to and downloaded from the Services, (ii) protect the confidentiality and integrity of User data and Your use.
11.2: However, no system is perfectly secure or reliable, the Internet is an inherently insecure medium and the reliability of hosting services, Internet intermediaries, your Internet service provider and other service providers cannot be assured. When you use MindBridge, you accept reasonably unavoidable risks and the responsibility for choosing to use a technology that does not provide perfect security or reliability.
11.3: MindBridge provides the MindBridge API to facilitate the use of the Services with other services on the Internet. If a third party is authorized through your MindBridge account to have access to your User Content through the MindBridge API, we cannot control and are not responsible or liable for any damages or loss caused by the third party in its use of your User Content.
11.4: Users shall implement and enforce the security of the systems they use to access the Services through reasonable technical, organizational and physical safeguards including without limitation a policy specifying the types of end systems used to access the Services and the controls required on the end systems. Such safeguards and policy shall without limitation (i) protect the confidentiality and integrity of data uploaded to and downloaded from the Services, (ii) protect the confidentiality and integrity of user credentials, and (iii) prevent the end systems from being used as a platform to attack the Services.
- Data Migration or Conversion
12.1: MindBridge may from time to time agree to provide certain data migration and/or conversion services to Subscribers in connection with their use of the Services (the “Data Migration Services”). In such event, the terms of this Section 12 shall apply.
12.2: Any data or information that you provide access to for the purpose of the Data Migration Services shall be considered to be User Content as defined in Section 4 of these Terms, and these Terms shall apply accordingly.
12.3: Data processed through the Data Migration Services may be reformatted or otherwise modified, as agreed in advance, for the purpose of use with the Services.
12.4: You understand that it is your responsibility to take appropriate measures to isolate and backup your data and files and to take such other actions necessary to protect your files and data. MindBridge shall not be liable to you in the event that any data that you provide to MindBridge is corrupted, erased or otherwise adversely affected.
12.5 In addition or as an alternative to the above, Subscriber may request that a Reseller provide such Data Migration Services. Access by a Reseller to the User Content of a Subscriber is subject to Subscriber authorizing such access through the Service. The provision of such Data Migration Services by a Reseller is outside of the terms of this Agreement, and it is the responsibility of Subscriber to enter into a separate agreement with Reseller to govern such relationship. MindBridge expressly disclaims all responsibility for, and Subscriber waives any claim against MindBridge in respect of and agrees to hold MindBridge harmless from, any act or omission by Reseller in providing such Data Migration Services.
- No Responsibility for Third-Party Services, Sites or Content
13.1: As a service to Users, the App may contain links to third-party websites (“Third-Party Sites”) or third-party content (“Third-Party Content”) and may provide third-party services (“Third-Party Services”), including Add-ons, payment processors and other payment intermediaries that you may use in connection with your use of the Services. You agree that you use Third-Party Sites, Third-Party Content (together, the “Third-Party Materials”) or Third-Party Services at your own risk, except for any Third Party Sites where You are automatically or unknowingly directed by your use of the Services, as authorized by MindBridge without prior notice, or for any Third-Party Services embedded in the MindBridge Services.
12.2: MindBridge makes no claim or representation regarding Third-Party Materials and Third-Party Services and provides them or links to them only as a convenience. Inclusion in the Services of Third-Party Materials does not imply MindBridge’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Materials MindBridge accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of Third-Party Materials, or Third-Party Sites linking to the Services. When you leave the Services, our terms and policies no longer govern, and when you use Third-Party Services, their terms and policies apply. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Materials and Third-Party Services and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
12.3: The provider of each Add-on is solely responsible for that Add-on, the content therein, any warranties or conditions to the extent that such warranties or conditions have not been disclaimed, any training, support or maintenance for the Add-on and any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge that you are purchasing the license to each Add-on from the provider of that Add-on; MindBridge is acting as agent for the provider in providing each such Add-on to you; MindBridge is not a party to the license between you and the provider with respect to that Add-on; and MindBridge is not responsible for that Add-on, the content therein or any warranties or claims that you or any other party may have relating to that Add-on or your use of that Add-on.
13.4: You acknowledge and agree that MindBridge and its affiliates are third-party beneficiaries of the End User License Agreement for each Add-on, and that, upon your acceptance of the terms and conditions of the license to any such Add-on, MindBridge will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third-party beneficiary thereof.
- Support, Maintenance and Professional Services
We may agree to provide you with additional support, maintenance and/or professional services from time to time. Any such additional services shall only be provided by express written agreement between us and you or Reseller and you and shall be subject to both the terms of this Agreement (where they shall be deemed to form part of the Services) and such other express agreement.
- Warranty Disclaimer
15.1: THE WEBSITE, MINDBRIDGE CONTENT, THE ADD-ONS AND THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS FROM MINDBRIDGE OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED HEREIN. MINDBRIDGE EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. MINDBRIDGE DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, THE CONTENT, THE ADD-ONS OR THE SERVICES ARE COMPLETELY ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
: WHILE MINDBRIDGE TAKES REASONABLE MEASURES TO SECURE THE SERVICES, MINDBRIDGE DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, THE CONTENT, THE ADD-ONS OR THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
15.2: WITHOUT LIMITING THE PROVISIONS OF SECTIONS 15.1 AND 15.3 ABOVE, MINDBRIDGE DOES NOT REPRESENT OR WARRANT ANY GUARANTEED RESULT, INCLUDING IN PARTICULAR BUT WITHOUT LIMITATION THAT ANY ANALYSIS OR PROCESSING OF DATA BY OR THROUGH THE SERVICES WILL IDENTIFY ALL OR ANY INSTANCES OF ANOMALIES THAT MAY OTHERWISE BE CAPABLE OF DETECTION THROUGH AUDIT AND OTHER ANALYSIS OF SUCH DATA. THE SERVICES ARE PROVIDED AS AN ADJUNCT TOOL FOR USE IN CONNECTION WITH OTHER AUDIT AND ANALYSIS TOOLS AND ARE NOT REPRESENTED BY MINDBRIDGE AS BEING CAPABLE OR APPROPRIATE FOR USE IN THE REPLACEMENT OF HUMAN-DRIVEN AUDIT SYSTEMS. THE USER IS RESPONSIBLE FOR VERIFYING THE ACCURACY OF ANY FINDINGS PRODUCED BY THE SERVICES.
15.3: WHERE THE SERVICES GENERATE ANY FORM OF INDICATORS (INCLUDING, WITHOUT LIMITATION, ANY INDICATORS THAT (I) INDICATE A RISK LEVEL IN RESPECT OF ANY PROBABILITY OF ANOMALIES; OR (II) ARE USED TO DISPLAY ANY RESULTS WHERE THE PROBABILITY OF ANOMALY IS ONE OF THE DETERMINING FIELDS IN SELECTING SUCH RESULTS), YOU ACKNOWLEDGE THAT SUCH INDICATORS ARE AUTOMATED ESTIMATES THAT, BY THEIR NATURE, MAY NOT BE ACCURATE. ACCORDINGLY, WITHOUT LIMITING THE PROVISIONS OF SECTIONS 15.1, 15.2 AND 15.3 ABOVE, MINDBRIDGE DOES NOT REPRESENT OR WARRANT THAT ANY INDICATORS OR RESULTS GENERATED BY THE SERVICES (INCLUDING WITHOUT LIMITATION ANY ANOMALY PROBABILITY INDICATORS) ARE ACCURATE OR REPRESENTATIVE OR CAPABLE OF BEING RELIED UPON.
- Limitation of Liability; Indemnity
16.1: YOU WAIVE AND SHALL NOT ASSERT ANY CLAIMS OR ALLEGATIONS OF ANY NATURE WHATSOEVER AGAINST MINDBRIDGE, ITS AFFILIATES OR SUBSIDIARIES, THEIR SPONSORS, CONTRACTORS, ADVERTISERS, VENDORS OR OTHER PARTNERS, ANY OF THEIR SUCCESSORS OR ASSIGNS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES (COLLECTIVELY, THE “RELEASED PARTIES”) ARISING OUT OF OR IN ANY WAY RELATING TO YOUR USE OF OR OTHERWISE CONNECTED TO THE WEBSITE, THE CONTENT, THE ADD-ONS OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS OR ALLEGATIONS RELATING TO INFRINGEMENT OF PROPRIETARY RIGHTS, OR ALLEGATIONS THAT ANY RELEASED PARTY HAS OR SHOULD INDEMNIFY, DEFEND OR HOLD HARMLESS YOU OR ANY THIRD PARTY FROM (I) ANY CLAIM OR ALLEGATION ARISING FROM YOUR USE OR OTHER EXPLOITATION OF THE WEBSITE, THE CONTENT, THE ADD-ONS OR THE SERVICES; (II) ANY CLAIM REGARDING DATA LOSS OR DATA CORRUPTION; OR (III) ANY OTHER FORM OF CLAIM. YOU AGREE THAT YOU USE THE WEBSITE, THE CONTENT, THE ADD-ONS AND THE SERVICES AT YOUR OWN RISK.
16.2: WITHOUT LIMITATION OF THE FOREGOING, AND EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER MINDBRIDGE NOR ANY OTHER RELEASED PARTY SHALL BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE WEBSITE, THE CONTENT, THE ADD-ONS OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR RELIANCE ON THE WEBSITE, THE CONTENT, THE ADD-ONS OR THE SERVICES OR OTHER INFORMATION OBTAINED FROM MINDBRIDGE OR ANY OTHER RELEASED PARTY OR ACCESSIBLE VIA THE WEBSITE, THE CONTENT, THE ADD-ONS OR THE SERVICES, OR THAT RESULT FROM MISTAKES, ERRORS, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO MINDBRIDGE OR ANY OTHER RELEASED PARTY’S RECORDS, PROGRAMS OR SERVICES.
16.3: IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MINDBRIDGE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE WEBSITE, THE CONTENT, THE ADD-ONS OR THE SERVICES EXCEED IN ANY CONTRACT YEAR THE TOTAL SUMS PAID BY YOU FOR ACCESS TO OR USE OF THE WEBSITE, THE CONTENT, THE ADD-ONS OR THE SERVICES, AS THE CASE MAY BE, IN SUCH CONTRACT YEAR IN WHICH THE BREACHES OCCURRED. A “CONTRACT YEAR” MEANS A TWELVE- (12)-MONTH PERIOD COMMENCING WITH THE DATE OF THE AGREEMENT OR ANY ANNIVERSARY OF IT.
16.4: YOU SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS MINDBRIDGE AND THE OTHER RELEASED PARTIES FROM ANY LOSS, DAMAGES, LIABILITIES, COSTS, EXPENSES, CLAIMS AND PROCEEDINGS ARISING OUT OF YOUR NEGLIGENT, UNAUTHORIZED OR USE OR MISUSE OF THE WEBSITE, THE CONTENT, THE ADD-ONS AND THE SERVICES IN BREACH OF THESE TERMS, AND IF YOU ARE A SUBSCRIBER, FROM YOUR CUSTOMERS’ USE OF THE SERVICES AND FROM THE USE OF THE WEBSITE, THE CONTENT, THE ADD-ONS AND THE SERVICES BY ANY PERSON TO WHOM YOU GIVE ACCESS TO YOUR ACCOUNT (INCLUDING STAFF OR ADVISORS), INCLUDING ANY CLAIMS MADE BY ANY PERSON THAT ANY OF YOUR USER CONTENT, AND IF YOU ARE A SUBSCRIBER, YOUR CUSTOMERS’ USER CONTENT, INFRINGES THE RIGHTS, INCLUDING THE INTELLECTUAL PROPERTY RIGHTS, OF ANY THIRD PARTY.
17.1: Each party shall (i) maintain in confidence all Confidential Information (as defined below) of the other party, (ii) use such Confidential Information only for the purpose of exercising its rights and fulfilling its obligations under these Terms and (iii) not disclose any Confidential Information of the other party to any third party except as expressly permitted hereunder or make any unauthorized use thereof. Each party shall treat the Confidential Information of the other party with the same degree of care against disclosure and/or unauthorized use as it affords to its own information of a similar nature or a reasonable degree of care, whichever is greater. User Data submitted will be treated as a trade secret and not shall be disclosed to any third party (other than a service provider of MindBridge in the course of providing the Service or as otherwise expressly for in this Agreement) for any reason, without Your express authorization.
17.2: No party shall be bound by obligations restricting disclosure and use set forth in this Agreement with respect to Confidential Information of the other party, or any part thereof, which: (i) was lawfully known or received by the receiving party prior to disclosure without any obligation of confidentiality; (ii) was generally publicly available prior to its disclosure, or becomes generally publicly available other than through a breach of this Agreement by the receiving party; (iii) was disclosed to the receiving party by a third party, provided such third party, or any other party from whom such third party receives such information, is not in breach of any confidentiality obligation in respect of such information; or (iv) is independently designed and developed by the receiving party without the use of any Confidential Information of the other party or any infringement or misappropriation of any intellectual property or other rights of the other party.
17.3: If a receiving party is compelled pursuant to legal, judicial or administrative proceedings, or otherwise required by law, to disclose Confidential Information of a disclosing party, the receiving party shall use reasonable efforts to (i) seek confidential treatment for such Confidential Information and (ii) provide prompt prior written notice to the disclosing party to allow the disclosing party to oppose such disclosure or to seek protective or other court orders.
17.4: If a receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of a disclosing party in breach of the confidentiality provisions in these Terms, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
17.5: “Confidential Information” means any business, marketing, technical, scientific or other information and User Data disclosed by either party that, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential, including, in your case, User Content.
17.6: The terms of Section 11 (Reliability and Security), not the terms of this Section 17, shall apply to the unauthorized use or disclosure of User Content resulting from a Security Incident. “Security Incident” means any unauthorized acquisition, destruction, modification, use, disclosure of or access to User Content (including, without limitation, Users using the System in violation of these Terms, system attacks, penetrations, denial of service attacks, misuses of access and instances of hacking or other unauthorized access or intrusion, virus dissemination or intrusion or unauthorized scans of any part of MindBridge’s or Users’ networks or computing resources or any User Content installed, running, processed, stored or maintained therein).
18.1: Notices that we give you (other than notice of amendment of these Terms, which is discussed in the introduction of these Terms) may be provided in any number of ways, including, but not limited to, by contacting you at the email address or phone number that you provide in your Registration Data and/or through notices posted in the dashboard area of your account on the Website or elsewhere on the Website. When we post notices on the Website, we post them in the area of the Website suitable to the notice. It is your responsibility to periodically review the Website for notices.
18.2: Submissions. You may choose to post on the Website or in the App any information, data, or other content, including on the Website’s interactive services, such as message boards and other forums, and chatting, commenting and other messaging functionality, or provide to MindBridge any suggestions, comments, input or feedback on the Services (each, a “Submission”). User Content is not considered a Submission. MindBridge has no control over and is not responsible for any use or misuse (including any distribution) by any third party of Submissions. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK. You agree that: (a) we are not subject to any confidentiality obligations in respect to the Submissions; (b) the Submissions are not confidential or proprietary information belonging to you or any third party and you have all of the necessary rights to disclose the Submissions to us; (c) we (including all of our successors and assigns) may freely use the Submissions without any restrictions; and (d) you are not entitled to receive any compensation or re-imbursement of any kind in respect of the Submissions.
You retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
You represent and warrant that you have all rights necessary to grant the licenses granted in this Section, and that your Submissions, and your provision thereof through and in connection with the Services, are complete and accurate and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
- Applicable Law and Venue
19.1: If you are located in the United States, this Agreement will be governed by and construed in accordance with the laws of the State of New York, USA. If you are located in Europe, the Middle East or Africa, this Agreement will be governed by and construed in accordance with the laws of England and Wales. If you are located in any other country or location, this Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. The application of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act is expressly excluded.
19.2: Except where prohibited by applicable law, any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future) involving MindBridge and arising out of or relating to (a) these Terms; (b) the Website, the MindBridge Content, the Add-ons or the Services; (c) oral or written statements, advertisements or promotions relating to these Terms or to the Website, the MindBridge Content, the Add-ons or the Services; or (d) the relationships that result from these Terms or the Website, the MindBridge Content, the Add-ons or the Services (collectively, a “Claim”), will be referred to and determined exclusively by the competent courts in the territory where the applicable governing law applies (as set forth in Section 19.1 above). Where a Claim will be determined by a court in the State of New York, USA, You hereby waive any right that you may have to request a jury trial with respect to any action brought by you in connection with this Agreement including the Services. You consent to the personal jurisdiction of such courts over you, stipulate to the fairness and convenience of proceeding in such courts and agree not to assert any objection to proceeding in such courts.
19.3: If you choose to access the Services from locations other than Ontario, you will be responsible for compliance with all local laws of such other jurisdiction and you agree to indemnify MindBridge and the other Released Parties for your failure to comply with any such laws.
- Termination/Modification of License and Website Offerings
Notwithstanding any contrary provision of these Terms, MindBridge reserves the right, without notice and in its sole discretion, without any liability to you, to (a) terminate your license to use the Services, or any portion thereof (including any use of any Add-on), and the rights of any third party to which you have granted access to your User Content through the MindBridge API; (b) block or prevent your future access to and use of all or any portion of the Services or MindBridge Content (including any use of any Add-on) and the rights of any third party to which you have granted access to your User Content through the MindBridge API; (c) change, suspend or discontinue any aspect of the Services or MindBridge Content; and (d) impose limits on the Services or MindBridge Content
- Inactive Accounts; Termination of Agreement
21.1: If your account is inactive for at least two (2) months, we may deactivate your account. Deactivated accounts are not deleted – they are placed in storage and can be restored. We will notify you by email if we decide to deactivate your account. If you know in advance that your account will be inactive for some time and don’t want us to deactivate it, let us know in advance. If, after your account has been deactivated, it stays inactive and we don’t hear from you for at least four (4) weeks, we may terminate it at any time without further notice.
21.2: You and MindBridge may terminate your use of the Services including your agreement to these Terms at any time. If you terminate your use of the Services, you must pay the fees applicable for the balance of the then current billing period (if your billing period is monthly, we will prorate your account to the nearest month-end after termination) including for any Add-ons you may be using. When your MindBridge account is terminated, your User Content will, shortly thereafter, not appear on the Services. We may also retain an archival copy of your User Content after termination, and you hereby grant to us a non-exclusive, perpetual, irrevocable, fully paid-up license to maintain such archival copy which shall remain subject to the obligations of confidentiality and security and such copy shall not be accessed except for archive administration.
21.3: If these Terms expire or terminate for any reason, Sections 4 and 13 through to 24 (inclusive shall survive indefinitely).
- Export Controls
You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. you represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
This Agreement, together with any other written agreement, between us that expressly incorporates these Terms (if any) constitute the entire agreement between you and MindBridge in respect to the Services, superseding any other agreements or discussions, oral or written, and may not be changed except by a written license agreement with MindBridge or a distributor of MindBridge. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in these Terms. The terms and conditions of this Agreement shall prevail over any pre-printed terms on any quotes, orders, purchase orders or purchase order acknowledgements and shall prevail over any other communications between the parties in relation to the Services and the Services shall be licensed pursuant to the terms and conditions of this Agreement hereof unless you have executed a written license agreement with MindBridge or a distributor of MindBridge, in which case the Services shall have been licensed pursuant to the terms and conditions of such written license agreement. You may not assign this Agreement whether voluntarily, by operation of law or otherwise without MindBridge’s prior written consent. MindBridge may assign this Agreement at any time without notice. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and such remaining provisions shall be reformed only to the extent necessary to make them enforceable under such circumstances. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and MindBridge.
If you have any questions or concerns about this Agreement and/or if you wish to contact MindBridge for any reason, please contact us (email: email@example.com).