END USER LICENSE AGREEMENT

Last updated on April 10th, 2017

This Agreement is made between you (the "Licensee"), and Mindesk, Inc. (the "Licensor") with a principal place of business at 405 Howard Street, 94105 San Francisco (CA), USA.

 

1. DEFINITIONS.

(a)          "Software" means the computer programs and documentation listed and described in Schedule A attached to this Agreement.

(b)          "Install" means placing the Software on a computer's hard disk, CD-ROM or other secondary storage device.

(c)           "Use" means (i) executing or loading the Software into computer RAM or other primary

memory, and (ii) copying the Software for archival or emergency restart purposes.

 

2. GRANT OF RIGHTS. Licensor hereby grants to Licensee a nonexclusive, non-transferable license to install and use the Software on one single user computer in its possession.

 

3. LICENSE TERM. This License is effective when this form is submitted and will last for a term of 30 days. Thereafter, this License shall automatically expire. The licensor can extend or renew the duration of the License. The Licensor can change or extend the terms of the Alpha license anytime.

 

4. USE LIMITATIONS. The license granted above allows use by up to a single user per entity set forth above (the “Use Limitation”). For determining the number of users, “you” includes all affiliates, meaning legal entities controlling, controlled by, or under common control with you.

The licensee can not reproduce or distribute copies of the Software or Derivative Works thereof in any medium, with or without modifications, and in Source or Object form.

 

5. MATERIAL PROVIDED TO MINDESK. Mindesk does not claim ownership of the materials you provide to Mindesk (including feedback and suggestions) or posts, uploads, inputs or submits to any Mindesk Site or our corporate mail addresses (collectively "Submissions"). However, by posting, uploading, sending, providing or submitting your Submission you are granting Mindesk permission to use your Submission in connection with the operation of their Internet businesses including without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name, your company’s name and your role in connection with your Submission. No compensation will be paid with respect to the use of your Submission, as provided herein. Mindesk is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in Mindesk's sole discretion.

 

6. TERMINATION. Licensor shall have the right to immediately terminate this License if Licensee fails to perform any obligation required of Licensee under this License or if Licensee becomes bankrupt or insolvent.

 

7. RETURN OR DESTRUCTION OF SOFTWARE UPON TERMINATION. Upon termination of this License, Licensee shall return to Licensor or destroy the original and all copies of the Software including partial copies and modifications. Licensor shall have a reasonable opportunity to conduct an inspection of Licensee's place of business to assure compliance with this provision.

 

8. TITLE TO SOFTWARE. Licensor retains title to and ownership of the Software and all enhancements, modifications and updates of the Software.

 

9. MODIFICATIONS AND ENHANCEMENTS. Licensee will make no efforts to reverse engineer the Software, or make any modifications or enhancements without Licensor's express written consent.

 

10. WARRANTY LIMITATIONS. THE SOFTWARE IS PROVIDED "AS IS". MINDESK MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHER THAN AS SET FORTH IN THIS AGREEMENT OR IN THE LIMITED WARRANTY DOCUMENTS PROVIDED WITH THE SOFTWARE PRODUCT.

Mindesk makes no warranty that the Software Product will meet your requirements or operate under your specific conditions of use. Mindesk makes no warranty that operation of the Software Product will be secure, error free, or free from interruption. YOU MUST DETERMINE WHETHER THE SOFTWARE PRODUCT SUFFICIENTLY MEETS YOUR REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. YOU BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SOFTWARE PRODUCT TO MEET YOUR REQUIREMENTS. MINDESK WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE.

UNDER NO CIRCUMSTANCES SHALL MINDESK, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE SOFTWARE PRODUCT, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF MINDESK OR ANY OTHER PARTY, EVEN IF MINDESK IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS MINDESK'S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED.

 

11. REMEDY LIMITATIONS. Licensor's entire liability and Licensor's sole and exclusive remedy for breach of the foregoing warranty shall be Licensor's option to either:

- return to Licensee the license fee for the period in which the Software did not perform according to this warranty, or

- repair the defects or replace the Software.

 

12. DAMAGE LIMITATIONS. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING LOSS OF PROFITS, AND LICENSOR'S LIABILITY TO LICENSEE FOR ANY OTHER DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT WHETHER IN CONTRACT, TORT, OR OTHERWISE WILL BE LIMITED TO THE AMOUNT RECEIVED BY LICENSOR FROM LICENSEE AS COMPENSATION FOR THE SOFTWARE DURING THE 0 MONTH PERIOD IMMEDIATELY PRIOR TO THE TIME SUCH CLAIM AROSE.

 

13. CONFIDENTIALITY. Licensee will treat the Software as a trade secret and proprietary know-how belonging to Licensor that is being made available to Licensee in confidence. Licensee agrees to treat the Software with at least the same care as it treats its own confidential or proprietary information.

 

14. ARBITRATION. The parties agree to submit any dispute under this License to binding arbitration under the rules of the American Arbitration Association in the following location: court of San Francisco. Judgement upon the award rendered by the arbitrator may be entered in any court with jurisdiction to do so.

 

15. ATTORNEY FEES. If any legal action is necessary to enforce this License, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses in addition to any other relief to which it may be entitled.

 

16. GENERAL PROVISIONS.

(a)            Complete Agreement: This License Agreement together with all schedules referred to in this Agreement, all of which are incorporated herein by reference, constitutes the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements, representations and documentation relating to the subject matter of this Agreement.

(b)          Modifications: Modifications and amendments to this Agreement, including any exhibit, schedule or attachment hereto, shall be enforceable only if in writing and signed by authorized representatives of both parties.

(c)           Applicable law:  This License will be governed by the laws of the State of California.

(d)          Notices: All notices and other communications given in connection with this License shall be in writing and shall be deemed given as follows:

- When delivered personally to the recipient's address as appearing in the introductory paragraph to this License;

- Three days after being deposited in the United States mail, postage prepaid to the recipient's address as appearing in the introductory paragraph to this License; or

- When sent by fax or telex to the last fax or telex number of the recipient known to the party giving notice. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first-class or certified mail or the recipient delivers a written confirmation of receipt.

Any party may change its address appearing in the introductory paragraph to this License by given notice of the change in accordance with this paragraph.

(e)          No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.

(f)           Severability: If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.

 

17. ASSIGNMENT. The rights conferred by this License shall not be assignable by the Licensee without Licensor's prior written consent. Licensor may impose a reasonable license fee on any such assignment.

 

18. PRIVACY STATEMENT. This Privacy Statement covers the use of certain Mindesk products and services delivered to you via apps or web pages, including Mindesk software, Mindesk online services, Mindesk cloud based services, and any Mindesk networks related to any of the foregoing (collectively, the “Mindesk Services” or “Services”) and the licensure of software products identified above, which includes computer and application software and may include associated media, printed materials, and "online" or electronic documentation, and any future versions, releases, updates, patches, error fixes and bug fixes of the above software ("Mindesk Software"). For convenience, we refer to the combination of products, software, websites, apps, and services we provide to you as the “System.”

You understand that through your use of the System you consent to the collection and use of certain information as described in this Privacy Statement, including the transfer of this information to the United States and/or other countries for storage, processing and use by Mindesk. Although the laws that protect personal information in those countries may differ from the laws where you live, we will take reasonable steps to ensure that your privacy is protected. By using our websites and giving your information to us, you consent to the transfer of the data outside of your country of residence. This Privacy Statement is subject to change and we will notify you in the event of a material change by posting such change prominently on the System; your continued use of the System after such changes will indicate your consent to the revised Statement.

Mindesk collects information relating to you and your use of the System in order to provide services and features that are easy to use and responsive to your needs. We use the term “Consumer Information” to refer to any personally identifiable or anonymous information relating to you or your use of the System. We use Consumer Information for a wide variety of purposes, as described below:

• Unless otherwise stated in this Privacy Statement, we do not share your Contact Information with anyone without your express consent.
• “Contact Information” means information that allows someone to identify or contact you or any user authorized by you to contact or interface with the System (e.g., your name, address, telephone number, email address). We may use your Contact Information to market Mindesk and third-party products and services to you via various methods.
• You can stop the delivery of future promotional emails from us by following the specific instructions in advertising emails you may receive. These choices do not apply to the receipt of mandatory service communications that are considered part of the Services.
• “Service Information” means information necessary or useful to us in providing the System to you. Examples of Service Information includes, but is not limited to, geographical location, software installation information, installation date, software usage data (e.g. installation date and time, software boot date and time, software close date and time, features activated), devices you use and how/when you use them (e.g., types, model numbers, software version numbers, OS types, graphic card model) which will enable us to provide you with information regarding upgrades, error fixes, and software updates, and the level of Service. This information is used by us for the operation of the System, to provide the Services, to maintain quality of the System and Services, and to provide general statistics regarding use of the System, among other things. We may also use Service Information for customer support, System restoration, and research and development activities for new products and services, and other similar purposes. Finally, we may provide certain Service Information to selected third parties, such as our business partners, for marketing purposes, where we have obtained your specific consent.
• Sometimes we may “anonymize” Consumer Information by removing any identifier that can be associated with your personal Contact Information. Anonymous Consumer Information helps us develop reports and analyses about how our customers use our System and for other research such as behavioral inferences. We may publically share or sell anonymous Consumer Information and reports and analyses based on anonymous Consumer Information. We may disclose aggregated, anonymous Consumer Information, and analyses and reports derived from such information to third parties including utilities, our service providers, suppliers, advertisers, merchants, consumer and market research companies and other organizations.
• We use tools to collect information from users of the System, including cookies and in-app analytics; we may use these tools to remember personal information when you use the Services in order to understand and analyze trends, to administer the System, to learn about user behavior on the System, and to gather demographic information about our user base as a whole. We may use this information in our marketing and advertising both on and off the System.
• We also use third parties to help with certain aspects of our operations, which may require disclosure of your Consumer Information to them. For example, we may use a third party to communicate with you about your account or upcoming features or services, for marketing purposes, to process and collect payment for your Services via your credit card, to generate demographic profiles based on Consumer Information of our customers, and to perform other work as part of or in relation to the System that we may need to outsource. We require these contractors and third parties to agree to protect the confidentiality of your Consumer Information and to use it only as necessary to perform the services they are asked to perform. These contractors and third parties are responsible and liable if they misuse any Consumer Information.
• We reserve the right to transfer Consumer Information in the event we sell or transfer all or a portion of our business or assets.
• We may disclose Consumer Information if required to do so by law or in the good-faith belief that such action is necessary to comply with legal requirements or with legal process served on us, to protect and defend our rights or property, or in urgent circumstances to protect the personal safety of any individual. We may provide links to third-party websites for your convenience and information. These websites may have their own privacy policies, which we suggest you review if you visit any linked websites. To the extent such websites are not owned or controlled by Mindesk, we are not responsible for the websites’ content, any use of the websites, or the privacy practices of the websites.

 

If the System is distributed by a dealer, contractor, utility company, retailer, or other third party and you share your Consumer Information with such party, we cannot control and are not responsible for the collection, storage, disclosure, and use of your information by such party. If the System is provided through your utility provider or third party System provider, we may share Consumer Information with your utility provider or third party System provider in accordance with your agreement with such utility provider or third party System provider. In some circumstances, we may share your Consumer Information with third parties upon your request; in such event we cannot control and are not responsible for the collection, storage, disclosure, and use of your information by such party. In these circumstances, such parties’ obligations with respect to such Consumer Information are governed by their agreement with you. In the event you choose to control your device with a third party application, software, or other offering, we cannot control or be responsible for the collection, storage, disclosure, and use of your Consumer Information by such third party.

Mindesk does not knowingly collect personally identifiable information from anyone younger than 13. If Mindesk is made aware that it has received personally identifiable information from someone younger than 13, it will use reasonable efforts to remove that information from its records.

 

Mindesk is committed to protecting the security of your personal information and System. We use a variety of security technologies and procedures to help protect your personal information and System from unauthorized access, use, or disclosure. For example, we store the personal information you provide on computer systems with limited access that are located in facilities to which access is limited. For sites to which you login, it is your responsibility to ensure the security of your password and not to reveal this information to others. When you move around a site to which you have logged in, or from one site to another that uses the same login mechanism, we verify your identity by means of an encrypted cookie placed on your machine. Notwithstanding the foregoing, Mindesk cannot guarantee that the System or your personal information cannot be compromised or hacked.

 

The provisions of this Privacy Statement will apply to the fullest extent permitted by law and be interpreted and applied to a lesser extent (but, in such case, to the maximum extent possible), where necessary to be valid. The invalidity or unenforceability of any provision of this Privacy Statement will not affect any other provision and all such other provisions will remain in full force and effect without change or modification thereof. You consent to the exclusive use of the English language in this Privacy Statement, as well as all communications from Mindesk.

 

If you have any questions about our privacy practices, please contact us at: [email protected]

 

© 2015 - 2017 Mindesk, Inc.