Effective Date: November 11, 2019
Thank you for your interest in using the online services operated by MindAntix, Inc. (hereafter referred to as “MindAntix”). These Terms of Service govern your use of online and/or mobile services, websites, and software provided on or in connection with www.MindAntix.com (collectively, the “Service”) which may be offered through (i) the MindAntix website located at www.MindAntix.com (the “Website”), (ii) mobile applications associated with the Website, and/or (iii) any other MindAntix website, app, or online service which links to these Terms of Service.
By accessing or using the Service or Website, or by clicking a button or checking a box marked “I Agree” or something similar, you acknowledge and signify that you have read, understood, and agree to be bound by these Terms of Service (the “Agreement”), and to the collection and use of your information as set forth in our Privacy Policy, whether or not you are a registered user of our Service. This Agreement applies to all visitors, registered users, and others who access or otherwise use the Service (“you” or “Users”). If you create a MindAntix account on behalf of a provider of educational services, school, or school district, (collectively referred to as a “School” or “Schools”), or company, organization, or other entity, then “you” includes you and that entity.
MindAntix reserves the right to modify this Agreement so long as it provides notice of these changes to you as described below.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
The Service helps its users to learn and practice various creative cognitive techniques like associative thinking, reverse thinking, and analogical thinking, as well as project-based learning modules that use these techniques in real world applications. Unless explicitly stated otherwise, any new or improved features to the Service shall be provided subject to this Agreement. You understand and agree that the Service is provided “as-is” and that MindAntix assumes no responsibility for any mistakes, errors, or omissions, including any unavailability of the Service or deletion or loss of any data relating to the Service.
MindAntix grants you a personal, revocable, non-transferable, and non-exclusive right and license to access and use the Service for its intended purpose subject to your compliance with this Agreement. You agree that you will not copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Service. You agree not to modify the Service in any manner or form, or to use modified versions of the Service, including without limitation for obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by MindAntix for use in accessing the Service. To use the Service, you must obtain access to the Internet, either directly or through devices that access web-based content, and pay any fees or other costs associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet, including a computer and modem or other access device.
MindAntix solely and exclusively owns all intellectual property and other rights, title, and interest in and to the Service, except as expressly provided for in this Agreement. For example and without limitation, MindAntix owns the trademark MindAntix, and the copyrights in and to the Service. You will not acquire any right, title, or interest therein under this Agreement or otherwise to any intellectual property owned by MindAntix. All rights not expressly granted in this Agreement are reserved.
MindAntix only offers and sells the Service to adults who can purchase the Service with a credit card or other permitted payment method. If you are under eighteen (18) years of age, you may use the Service only with the involvement and consent of a parent, legal guardian, or at the direction of your School. Your School may impose additional policies regarding the use of the Service with which you must comply.
If you register for a MindAntix account to provide the Service to students in a School or other organization, you represent and warrant that you are an authorized representative of such School or organization with the authority to bind the School or organization to this Agreement, and that you agree to this Agreement on the School's or organization’s behalf. If you contact MindAntix to take any action with respect to an account, you represent and warrant that you have all necessary authority to request such action(s) from or on behalf of the account holder (e.g., a School or parent).
The U.S. Children's Online Privacy and Protection Act (“COPPA”) requires that online service providers obtain verifiable parental consent before collecting personal information from children under 13. If you are a School providing the Service to children under 13, you represent and warrant that you have the authority to provide consent on behalf of parents for MindAntix to collect information from students under 13 before allowing such students to access our Service. We recommend that all Schools provide appropriate disclosures to students and parents regarding their use of service providers such as MindAntix and that they provide a copy of our Privacy Policy to parents.
If you register to use the Service, as a condition of acceptance of your registration, you agree to (i) provide true, accurate, current, and complete information about yourself as prompted by the Service registration form and (ii) maintain and promptly update such information to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or MindAntix has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, MindAntix reserves the right to suspend or terminate your account and refuse all current or future use of the Service or any portion thereof.
MindAntix sells access to the Service in the form of an account. Each account is provided for a term and price subject to certain renewal, cancellation, and other terms and conditions specific to the type of account you subscribed for at the time of registration. Your specific account terms may be contained in the quote or sales contract you received from us or through the selections you made and account-specific terms disclosed when registering for an account online (which may be confirmed by e-mail). Each account may have additional terms in addition to or different from those as set forth in this Agreement, but only to the extent set forth in a signed writing by the account subscriber and an authorized officer of MindAntix.
MindAntix provides a variety of account types which may apply depending on the subscriber and the way an MindAntix account is created. Each account type has a default set of terms and conditions which apply unless superseded as set forth above. MindAntix reserves the right to provision accounts that do not belong to any of these default account types and/or to provision accounts with different terms and conditions regardless of account type.
An individual account is purchased by or for a parent. Individual accounts are generally only available for purchase through the MindAntix website using a credit card. An individual account typically includes one or more child profiles that can be used by a child at the parent’s direction. Individual account subscriptions are generally for a term of either one month or one year and renew automatically. The term of your account can be selected at the time of purchase or later changed by contacting support@mindantix.com. Section 5 below provides more information about automatic renewal and cancellation of automatically renewing accounts.
A classroom account is purchased by a teacher or other authorized representative on behalf of a school or other educational services provider. Classroom accounts may generally be purchased either through the MindAntix website, by phone, or by e-mail. A classroom account typically includes a single teacher user and a small number of student users (the specific number may vary depending on the purchase). A classroom account is typically for a term of one year and does not automatically renew. Action must be taken by the school or its authorized representative to renew and continue using a classroom account past the end of the term. Classroom accounts are a type of school account for billing purposes. More information relating to school accounts can be found in Section 5 below.
A site account is purchased by or on behalf of a school or school district. Site accounts may only be purchased by phone or e-mail. A site account typically includes an unlimited number of teacher users and a set maximum number of student users (the specific maximum number may vary depending on the purchase). A site account may be for a term of one year or longer and is disclosed at the time of purchase. Site accounts do not automatically renew. Action must be taken by an authorized representative of the school or school district to renew and continue using a site account past the end of the term. A site account is also a type of school account. More information relating to school accounts may be found in Section 5 below.
If you are a school or school district, you may be provided with a quote or proposal. Any quote or proposal provided to you by MindAntix is valid only for a limited time and may be withdrawn by MindAntix at any time in its sole discretion. Quotes and proposals may include information that is proprietary and confidential to MindAntix and may not be disclosed to anyone other than their intended recipient. By requesting and/or accepting receipt of a quote or proposal from MindAntix you agree to keep such quotes or proposals confidential, to not disclose such quotes or proposals to any third party, and to immediately return and/or destroy all quote and proposal materials upon receiving a request to do so from MindAntix. To the extent that public records laws may apply to a quote or proposal provided to you by MindAntix, you agree to immediately notify MindAntix of any public records request that may result in disclosure of a MindAntix quote or proposal and provide MindAntix all reasonable opportunities to take reasonable steps to prevent such disclosure to the maximum extent permitted by law and to cooperate with MindAntix in preventing such disclosure.
Schools may be billed either monthly or annually depending on the type of account subscribed for by a School at the time of registration. School accounts may have the option to remit payments to MindAntix by credit card, check, or other methods at the discretion of MindAntix. Payment must be received by MindAntix no later than 30 days after MindAntix issues an invoice. If MindAntix does not receive payment within 30 days, the invoice is past due and MindAntix reserves the right to suspend access to the affected school account(s) and take collection action. Suspension of an account does not relieve the account-holder of its obligation to pay for the account. MindAntix reserves the right to charge a late fee in the amount of 1.5% per month or the maximum permitted by law and its reasonable attorney's fees in securing payment of past due amounts.
Except as set forth below or otherwise agreed by MindAntix in a signed writing, accounts may not be canceled until the end of the current term of the account. Unless otherwise provided for herein, all cancellations requested before the end of the then-current term will be effective at the end of the current term. MindAntix permits early cancellations only in the event that the Service is permanently discontinued, or to the extent required by applicable law. In the event of such an early cancellation, the parties agree that the account holder is responsible for all amounts due and payable before the date of early cancellation without pro-ration or to the greatest extent permitted by law. The parties agree that MindAntix’s efforts in selling, provisioning, and providing an account are front-loaded and for that reason, pro-ration of fees in the event of early cancellation is not necessary or appropriate.
When an account subscription ends (e.g., at the end of the term if the account has not been renewed or has been canceled), the account no longer permits access to the Service. However, MindAntix may, at its sole discretion, permit continued, limited access for users of the Account for a limited time after the conclusion of the term. If an account-holder or any of its users wishes to save or maintain any data, it is the account-holder and its user's sole obligation to download such data before the conclusion of the term. Once the term of an account ends, MindAntix may delete data relating to an account in accordance with this Agreement and the Privacy Policy. It is the account-holder's sole responsibility to request renewal of accounts that do not automatically renew to maintain continued access to the account and its associated data.
When MindAntix is used by a School for an educational purpose, MindAntix may collect or have access to Student Data that is provided by the School or by a student. “Student Data” is personal information that is directly related to an identifiable student and may include educational records as defined by the Family Educational Rights and Privacy Act (“FERPA”). The School or the student, and not MindAntix, owns and controls the Student Data. You authorize MindAntix to access, collect, transmit, modify, display and store Student Data to provide the Service and as described in this Agreement and in our Privacy Policy.
In the U.S., MindAntix may collect and process Student Data as a “School Official” with a legitimate educational interest pursuant to FERPA, 20 U.S.C. § 1232(g). Individually and collectively, MindAntix and our School users agree to uphold our obligations under FERPA, the Children's Online Privacy Protection Act (“COPPA”), the Protection of Pupil Rights Amendment (“PPRA”), applicable state laws relating to student data privacy, and with all other laws and regulations governing the protection of Student Data.
By submitting, providing us access to, or causing us to receive Student Data, you agree that MindAntix may use the Student Data for the purposes of (i) providing the Service, (ii) improving and developing our Service, (iii) enforcing our rights under these Terms, and (iv) as permitted with the School’s or the User's consent.
You agree that both before and after the term of the Agreement, MindAntix may collect, analyze, use, and retain data derived from Student Data as well as data about users’ access and use of the Service, for the purpose of operating, analyzing, improving, or marketing the Service, developing new products or services, conducting research or other purposes, provided that MindAntix may not share or publicly disclose information that is derived from Student Data unless such data is de-identified and/or anonymized such that it cannot reasonably identify a specific individual.
You agree that MindAntix may provide customized content, advertising, and commercial messaging to school, teacher, or district administrative users and other non-student users from time to time, provided that such advertisements shall not be based on Student Data. For emphasis, and without limitation, MindAntix shall never use Student Data to engage in targeted advertising.
You acknowledge and agree that MindAntix may provide access to Student Data to our employees and service providers which have a legitimate need to access such information to provide their services to us. We and our employees, affiliates, service providers, or agents involved in the handling, transmittal, and processing of Student Data will be required to maintain the confidentiality of such data. MindAntix shall not share Student Data with third parties other than as described in this Agreement and in the MindAntix Privacy Policy, or with consent of the School or parent.
You may request that we delete Student Data in our possession at any time by providing such a request in writing, and we shall comply with such request within thirty (30) days, except that MindAntix shall not be required to delete Student Data that has been moved to a personal account on the Service or as otherwise prohibited by law. A parent or student over the age of 18 seeking to access, modify, correct, or delete personal information in a student account that is connected to a School account must contact the School to discuss data deletion or modification. MindAntix is not required to delete data that has been derived from Student Data if such data is de-identified and/or anonymized such that it cannot reasonably identify a specific individual.
We have implemented administrative, physical, and technical safeguards reasonably designed to secure the personal information in MindAntix's possession and control from unauthorized access, disclosure, and use. If an unauthorized party gains access to or has been disclosed Student Data (a “Security Event”), that we have collected or received through the Service under this Agreement, we will promptly notify the School or individual user, as appropriate under the circumstances. If, due to a Security Event involving a School account which is caused by the acts or omissions of MindAntix or its agents, a notification to an individual, organization, or government agency is required under applicable privacy laws, the School shall be responsible for the timing, content, and method of any such legally-required notice and compliance with such laws and MindAntix shall indemnify the School for reasonable costs related to legally-required notifications. With respect to any Security Event which is not caused by the acts or omissions of MindAntix or its agents, MindAntix shall reasonably cooperate with the School’s investigation of the Security Event, upon School request, at the School’s reasonable expense, but MindAntix shall not indemnify a School for costs associated with such Security Event. MindAntix shall be responsible for the timing, content, cost and method of notice and compliance with such laws as they relate to users that are not associated with a School account.
If you have registered for an account to use the Service using a credit card, your account will automatically renew as further described below. You can find specific details regarding your subscription with MindAntix at any time by signing in to your MindAntix account. You may also contact MindAntix with any questions at support@mindantix.com.
By registering for a MindAntix account, you agree that we are authorized to charge you the subscription fees associated with the term of the account you choose during registration (e.g., monthly or annually). Thereafter, we will automatically renew your subscription on each month or annual anniversary of your subscription date, and as authorized by you during the registration process. We will charge your payment method the then-current fees associated with your account and any applicable sales or similar taxes. Please note we reserve the right to adjust the pricing for our Service, including but not limited to our subscription plans, in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in this Agreement, any price changes will take effect following posting or other notice to you.
You acknowledge that the amount billed each billing period may vary for reasons that include differing amounts due to changes in your subscription, and you authorize us to charge your payment method for such varying amounts. Payments are nonrefundable and there are no refunds or credits for partially used periods. We may change the fees and charges in effect, or add new fees and charges from time to time, but will endeavor to give you advance notice of these changes. If you want to use a different payment method or if there is a change in your preferred payment method, such as your credit card number or expiration date, you may edit your payment method information by signing into your MindAntix account.
If you wish to cancel your membership, you must do so before it renews each billing period to avoid billing of the next membership fee to your payment method. The membership fee will be billed at the beginning of the paying portion of your membership and each month or year thereafter unless and until you cancel your membership. You will continue to have access to the Service until the current billing period ends. We do not provide refunds or credits for any partially used membership periods. To cancel your membership, sign in to your MindAntix account or contact us at support@mindantix.com.
You will have a username and password upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of your account and are fully responsible for all activities that occur under your account. You agree to immediately notify MindAntix of any unauthorized use of your account or any other breach of security. MindAntix is not liable for any unauthorized access to your account or data that arises from your acts or omissions. MindAntix accounts may not be shared by more than one person or organization unless express authorization is given by MindAntix.
You are solely responsible for any content that you create, transmit or display while using the Service. The Service or MindAntix may now or in the future allow users to submit, post, display, provide, or otherwise make available content such as text, images, comments, questions, and other content or information (any such materials a user submits, posts, displays, provides, or otherwise makes available on the Service is referred to as “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service or to MindAntix, you acknowledge and certify that you have the legal right to the User Content you submit to the Service. You may not upload or post any User Content to the Service that infringes the copyright, trademark or other intellectual property rights of a third party nor may you upload User Content that violates any third party's right of privacy or right of publicity. You may post only User Content that you have permission to post by the by the owner or by law.
Further, you hereby grant, and you represent and warrant that you have all rights necessary to grant to MindAntix a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and MindAntix’s and its successors’ and affiliates’ business, including without limitation for promoting and redistributing part or all of the Service and derivative works thereof, in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.
It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify MindAntix's copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following DMCA Agent:
Legal Department
DMCA Agent
MindAntix, Inc.
15335 N.E. 95th Street
Redmond, WA 98052
legalnotices@mindantix.com
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.
Please note that this procedure is exclusively for notifying MindAntix and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with MindAntix’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, MindAntix has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. MindAntix may also at its sole discretion limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
To the extent permitted by applicable law, you agree to indemnify and hold MindAntix, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of (i) content you submit, post, transmit or make available through the Service, including without limitation, User Content, (ii) your use or misuse of the Service, (iii) your connection to the Service, (iv) your violation of the Agreement, (v) your violation of any applicable law or the rights of another person or entity, (vi) your willful misconduct, or (vii) any other party's access and use of the Service with your unique username, password, or other appropriate security code. MindAntix reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
MindAntix may provide notifications, whether required or provided by law or otherwise, to you via e-mail, in written or hard copy notice, or through posting of such notice on our website, as determined by MindAntix in our sole discretion.
MindAntix may, in its sole discretion, modify or update this Agreement from time to time, which will be reflected in the “Date Last Modified” included in this Agreement. If we change this Agreement in a material manner, we will update the “Effective Date” at the top of this page and notify you that material changes have been made to this Agreement. Your continued use of the Services following such update constitutes your acceptance of the revised Terms. If you do not agree to any of the terms in this Agreement or to any future terms in a future revision of this Agreement, you may not use or access (or continue to access) the Service.
Notwithstanding the foregoing, MindAntix shall not make any material change to the Terms that relate to the collection or use of Student Data without first giving notice to the School or parent and providing a choice before the Student Data is used in a materially different manner than was disclosed when the information was collected.
In the event that you have entered into a signed, written agreement with MindAntix in addition to this Agreement, any changes to this Agreement will not be effective as to you until either (a) you affirmatively accept the changes to this Agreement, either electronically or in a signed writing, or (b) upon renewal at the end of the current term of your written agreement.
You will not be permitted to continue using the Service and MindAntix reserves the right to cancel your account without notice if you refuse or otherwise fail to accept changes made by MindAntix to this Agreement.
Notices that are required or permitted to be sent to MindAntix must be sent to the following mailing address by certified mail with a copy sent by e-mail.
Legal Department
DMCA Agent
MindAntix, Inc.
15335 N.E. 95th Street
Redmond, WA 98052
legalnotices@mindantix.com
MindAntix reserves the right at any time and from time to time to modify or temporarily discontinue the Service (or any part thereof) with or without notice. You agree that MindAntix shall not be liable to you or to any third party for any modification, suspension or temporary discontinuance of the Service. In the event of permanent discontinuance of the Service, MindAntix's liability is limited to the paid subscription price, pro-rated to the amount of time remaining on the subscription.
Further, you agree that MindAntix, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service, for any reason, including, without limitation, for lack of use or if MindAntix believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. You agree that any termination of your access to the Service under any provision of this Agreement may be implemented without prior notice, and you acknowledge and agree that MindAntix may immediately deactivate or delete your account and all data relating to your account and/or bar any further access to the Service without any liability to you or any third party for any termination of your access to the Service.
The Service may provide, or third parties may provide, links to other Internet websites or resources. You acknowledge and agree MindAntix has no control over such sites and resources and is not responsible for the availability of such external sites or resources. MindAntix does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that MindAntix shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
MindAntix and the MindAntix logo are registered trademarks of MindAntix, Inc. You agree not to use any MindAntix trademarks without the express advance written permission of MindAntix. You further acknowledge and agree that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable U.S. and international intellectual property and other laws and that information presented through the Service is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Under the terms of this Agreement, it is expressly forbidden to distribute or reproduce the content of the Service or any portion thereof by any means, including but not limited to electronic and print. MindAntix reserves the right to cancel your account without refund if it is determined that you have violated this section of the Agreement.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MINDANTIX EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
MINDANTIX MAKES NO WARRANTY OR CONDITION THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MINDANTIX OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE AGREEMENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MINDANTIX, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MINDANTIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
In no event shall MindAntix or its subsidiaries, parent companies, affiliates, licensors, contractors, employees, officers, directors, agents or third-party partners’ total liability to you for all damages, losses, and causes of action arising out of or relating to this Agreement or your use of the Service, whether in contract, tort, warranty or otherwise, exceed the amount paid by you, if any, for accessing the MindAntix Service during the six (6) months preceding your claim or one hundred dollars ($100), whichever is greater.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN CLAIMS OR DAMAGES SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM MINDANTIX.
For any dispute with MindAntix, you agree to first contact us at legalnotices@mindantix.com and attempt to resolve the dispute with us informally. In the unlikely event that MindAntix has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. For more information and to contact JAMS, please visit www.jamsadr.com.
The arbitration will be conducted in Seattle, Washington, unless you and MindAntix agree otherwise. If you are a School or are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process outlined above.
Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing MindAntix from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL, OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS MINDANTIX AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND MINDANTIX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
You agree that (i) the Service shall be deemed solely based in the State of Washington; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than the State of Washington. This Agreement shall be governed by the internal substantive laws of the State of Washington, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
You agree to submit to the personal jurisdiction of the federal and state courts located in King County, Washington for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that King County, Washington is the proper forum for any appeals of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable.
This Agreement, together with any amendments and any additional agreements you may enter into with MindAntix relating to the Service, shall constitute the entire agreement between you and MindAntix and govern your use of the Service, superseding any prior agreements between you and MindAntix. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order or acceptance. This Agreement may only be superseded by a signed writing executed by an authorized officer of MindAntix. The failure of MindAntix to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued. We might make versions of this Agreement or one or more of our policies available in languages other than English. If we do, the English version of this Agreement and any such policies will govern our relationship and the translations are provided for convenience only and will not be interpreted to modify the English version of this Agreement or such policies. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
Date Last Modified: November 11, 2019